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STUDIES IN THE POLICE POWER OF 
THE NATIONAL GOVERNMENT 



by 



ROBERT EUGENE CUSHMAN 

Associate Professor of Political Science, 
University of Minnesota. 



Reprinted from the Minnesota Law Review, 

Vol. Ill, Nos. 5, 6, and 7, April, May and June, 1919, 

Vol. IV, Nos. 4 and 6, March and May, 1920. 







THE NATIONAL POLICE POWER 

UNDER THE 

COMMERCE CLAUSE OF THE CONSTITUTION 

To point out to the man in the street that while the Congress 
of the United States may pass laws to suppress the white slave 
traffic or the sale of adulterated food, it has no power to prohibit 
child-labor or to regulate marriage and divorce, does not add 
much to his understanding of American constitutional law. Too 
often it merely decreases his respect for the constitution and the 
courts which construe it. His feeling is one of exasperation that 
any truly national need should exist, any national problem should 
cry for solution, and the national legislature should lack the 
authority to deal with it. 

The point of view of the layman emphasizes in striking fash- 
ion the completeness with which, as a people, we have been won 
over more or less unconsciously to the belief that Congress has, 
or ought to have, authority to pass any salutary law in the interest 
of the national welfare. Instead of surprise that Congress 
should have the temerity to penetrate into a new field of legisla- 
tion, there is impatience to find that there is any such field into 
which Congress may not penetrate. It is the purpose of this 
article to restate some fundamental doctrines of our constitutional 
law and review some of the steps in our constitutional history 
with* a view to making clear the somewhat precarious trial and 
error process by which Congress has come gradually to legislate 
in affairs over which it has been supposed to have no jurisdiction 



290 MINNESOTA LAW REVIEW 

— to assume responsibility for the safety, health, morals, good 
order, and general welfare of the nation, and thus to exercise 
what may be called a national police power. 

It seems clear that it is entirely proper to use the term "na- 
tional police power." To borrow a definition of the police power 
from the authority perhaps most competent to lend, 1 it is that, 
power of government which "aims directly to secure" and promote 
the public welfare" by subjecting to restraint or compulsion the 
members of the community. It is the power by which the gov- 
ernment abridges the freedom of action or the free use of prop- 
erty of the individual in order that the welfare of the state or 
nation may not be jeopardized. It is obvious, then, that when 
Congress places a prohibitive tax upon poisonous matches, ex- 
cludes obscene literature from the mails, or enacts an employers' 
liability law, it is exercising police power. What is- the source 
and nature of this police power which Congress enjoys and 
what are the limitations upon it? 

Theory of the National Police Power 

*• 
Principle of Enumerated Powers of Congress 

To understand clearly the nature of the national police power 
it is necessary to bear in mind one of the a b c's of our constitu- 
tional law, namely, that Congress enjoys those powers of legis- 
lation, and only those, which are positively given to it by the 
constitution. Unlike the states, which enjoy all powers which 
have not been taken, away from them, it has only the powers which 
are delegated to it. The subjects over which it may exercise con- 
trol are carefully enumerated. It would be useless to argue a 
point so firmly established. Nothing is clearer than that the 
purpose of the Convention of 1787 was to confer upon the new 
Congress a certain group of powers definitely delimited and to 
leave the other powers of government in the hands of the states. 
Hamilton's famous argument in the Federalist 2 against the adop- 
tion of a bill of rights to the new constitution urged, it will be 
recalled, that to add to the constitution a list of things which 
Congress might not do, when Congress had never been given 
power by the constitution to do them, savored of the dangerous 

1 Freund, Police Power, Sec. 3. 

2 Federalist, No. 84. 

Gift 

AUia 4 1W4) 



THE NATIONAL POLICE POWER 291 

doctrine that Congress enjoyed powers not positively granted to 
it provided they had not been specifically denied to it. Any such 
danger was, of course, obviated by the Tenth Amendment de- 
claring that "the powers not delegated to the United States by 
the Constitution, nor prohibited by it to the States, are reserved 
to the States respectively, or to the people" ; and since that time 
commentators and courts have joined with complete unanimity in 
making the doctrine that the powers of Congress are enumerated 
powers a constitutional axiom." 

The effect of this doctrine of enumerated powers upon the 
right of Congress to exercise a national police power is perfectly 
plain. The enumeration of congressional powers in the constitu- 
tion does not include any general grant of authority to pass laws 
for the protection of the health, morals, or general welfare of the 
nation. 4 It follows, then, that if Congress is to exercise a police 
power at all it must do so by a process something akin to indirec- 
tion ; that is. by using the powers which are definitely confided to 
it, for the purposes of the police power. If it would enter upon 
an ambitious program to protect public morals or safety or health 
or to promote good order, it must cloak its good works under its 
authority to tax, or to regulate commerce, or to control the mails, 
or the like, and say, "By this authority we pass this law in the 
interest of the public welfare." In short, Congress exercises a 
generous police power not because that power is placed directly 
in its hands but because it has the power to regulate commerce, to 
lay taxes, and to control the mails, and uses that authority for 
the broad purposes of the general welfare. 5 

3 "The constitution was, from its very origin, contemplated to be the 
frame of a national government, of special and enumerated powers. This 
is apparent, as will presently be seen from the history of the proceedings 
of the convention which framed it; and it has formed the admitted basis 
of all legislative and judicial reasoning upon it ever since it was put in 
operation, by all who have been its open friends and advocates as well as 
bv all who have been its enemies and opponents." Storv, Constitution, 
5th ed., I, Sec. 909. 

4 Sec. 8. Art. I, of the constitution reads : "The Congress shall have 
power to lay and collect Taxes, Duties. Imposts and Excises, to pay the 
Debts and provide for the common Defense and general Welfare of the 
United States ; . . ." It has been generally agreed, however, that this 
clause does not confer a general police power upon Congress, but merely 
the power of levying taxes, etc., for the purpose of paying the debts and 
providing for the common defense and general welfare of the country. 
For elaborate review of the authorities on this point, see Watson, Con- 
stitution, I. p. 390 et seq. 

5 This point is further emphasized and the practice severely criticized 
in v illuminating article by Judge Charles M. Hough, Covert Legislation 



292 MINNESOTA LAW REVIEW 

That Congress can exercise police power only in so far as it 
is possible to utilize one of its enumerated powers for that pur- 
pose is not due to accident or inadvertence. The limited nature 
of that police power has been emphasized and re-emphasized by 
the unsuccessful efforts of those who from 1787 to the present 
time have sought to secure its enlargement and invest Congress 
with a power adequate to deal with any truly national problem. 
The earliest of these efforts was made in the Convention of 1787. 
Four resolutions were introduced during the sessions of that 
body, varying somewhat in phraseology but similar in purpose. 6 
That purpose, to quote the language of the one introduced by 
Mr. Bedford, was to confer upon Congress the power "to legislate 
in all cases for the general interests of the Union, and also in 
those to which the States are severally incompetent, or in which 
the harmony of the United States may be interrupted by the 
exercise of individual legislation." In defeating these resolutions 
the Convention passed squarely upon the question whether or not 
Congress should enjoy a general police power for the protection 
of the national welfare apart from its specifically enumerated 
powers and decided that it should not. 

There is a difference of opinion among historians and com- 
mentators as to whether James Wilson actually held to the 
doctrine that Congress possessed any general unenumerated pow- 
ers. Certain utterances of his have, however, been quoted to 
prove that he held this view ; and more than a century later 
President Roosevelt used him as an authority in support of his 
famous doctrine of "New Nationalism." In 1785 Wilson re- 
ferred to the powers of Congress under the Articles of Confed- 
eration in the following language : "Though the United States in 
congress assembled derive from the particular States no power, 
jurisdiction, or right which is not expressly delegated by the con- 
federation, it does not thence follow that the United States in 
congress have no other powers, jurisdiction, or rights, than those 
delegated by the particular states. The United States have gen- 
eral rights, general powers, and general obligations, not derived 

and the Constitution, (1917) 30 Harv. Law Rev. 801. See also an article 
by Paul Fuller, Is There a Federal Police Power? (1904) 4 Col. Law Rev. 
563. 

6 Farrand, Records of the Federal Convention of 1787, I, p. 229; II, 
pp. 25, 26, 367. The first of these was the sixth resolution in the report 
of the Committee of the Whole ; the others were introduced by Sherman, 
Bedford, and Rutledge, respectively. 



THE NATIONAL POLICE POWER 293 

from any particular state, nor from all the particular states, 
taken separately; but resulting from the union of the whole. 
. . . To many purposes the United States are to be considered 
as one undivided, independent nation; and as possessed of all the 
rights, and powers, and properties by the law of nations incident 
to such. Whenever an object occurs, to the direction of which 
no particular state is competent, the management of it must, of \ 
necessity, belong to the United States in congress assembled. 
There are many objects of this extended nature." 7 If such a 
construction could be placed upon the powers of the congress of 
the Confederation, powers which were not only delegated but 
expressly delegated, then surely the same construction could be 
placed, a fortiori, upon the powers of Congress under the present 
constitution, which omits the word "expressly." When the fed- 
eral constitution was 'before the Pennsylvania convention for 
ratification Wilson, who was a member of that body, made a 
speech in which he declared that the framers of the constitution 
in drawing a line between the powers of the national government 
and those of the states had acted upon the principle that "What- 
ever object of government is confined in its operation and effect 
within the bounds of a particular state, should be considered as 
belonging to the government of that state; whatever object of 
government extends in its operations or effects beyond the bounds 
of a particular state, should be considered as belonging to the 
government of the United States." 8 Although this statement 
might lend support to the view that Congress could deal with 
national problems because they were national even in the absence 
of a positive grant of authority to do so, it seems hardly neces- 
sary to regard it in any other light than as a simple statement of 
the object which the Convention tried to attain in the matter of 
distributing powers between the nation and the states. Without 
speculating further on the actual significance of the statements 
quoted, it may be noted that no trace is found of the so-called 
"Wilson Doctrine" in Wilson's judicial utterances, nor is there 
other evidence that he ever became an active exponent of that 
principle. 9 

7 Considerations on the Power to Incorporate the Bank of North 
America, Wilson's Works, Andrews' ed., I, pp. 557, 558. 

8 Ibid., p. 533. 

9 In support of the so-called Wilson doctrine, see : L. H. Alexander, 
James Wilson, Patriot, and the Wilson Doctrine, North Am. Rev. vol. 183, 
p. 971 ; Governor Samuel W. Pennypacker, Address at Wilson Memorial 



294 MINNESOTA LAW REVIEW 

It remained for President Roosevelt to discover or at least 
to label the neutral or "twilight" zone in our constitutional 
system— a zone lying between the jurisdictions of the state and 
the nation, to which lawbreakers of great wealth might repair 
and be free from punishment or restraint. Large corporations 
had come to be beyond the reach of the state because they had 
grown to national dimensions ; they were outside the effective 
control of Congress because the constitution does not confer 
upon Congress a positive grant of authority to deal with them 
directly. It was to meet this situation that President Roose- 
velt urged his doctrine of "New Nationalism," first as a prin- 
ciple of constitutional interpretation, and, failing in that, as a 
constitutional amendment. That doctrine may be best stated 
in his own words : "It should be made clear that there are 
neither vacancies nor interferences between the limits of state 
and national jurisdictions, and that both jurisdictions together 
compose only one uniform and comprehensive system of gov- 
ernment and laws ; that is, whenever the states cannot act, 
because the need to be met is not one merely of a single locality, 
then the national government, representing all the people, 
should have complete power to act." 10 In public addresses 
delivered after 1906 President Roosevelt reverted again and 
again to this subject, urging always that the federal govern- 
ment should be competent to deal with every truly national 
problem and expressing his impatience at "the impotence which 
springs from overdivision of government powers, the impo- 
tence which makes it possible for local selfishness or for legal 
cunning, hired by wealthy special interests, to bring national 
activities to a deadlock." 11 / C. 

But if this "New Nationalism" is ever to be incorporated into 
our constitutional law it will need to be by a constitutional 
amendment. In the case of Kansas v. Colorado, decided in 
1907, 12 the Supreme Court was invited to adopt that doctrine 
in construing the powers of Congress, but it declined in no 



Services, (1906) 55 Am. Law Reg. p. 13; President Roosevelt, speech at 
dedication of Pennsylvania state capitol, quoted and discussed in Willough- 
by, Constitution, I, p. 48. The doctrine is criticized by Edward Lindsay 
in Wilson Versus the "Wilson Doctrine," 44 Am. Law Rev. p. 641. 

10 From his speech at Ossawatomie, Kansas, August 31, 1910. 

11 Idem. The doctrine of "New Nationalism" is discussed and criti- 
cized in Willoughby, Constitution, I, pp. 48-66. 

" (1907) 206 U. S. 46, 51 L. Ed. 956, 27 S. C. R. 655. 



THE NATIONAL POLICE POWER 295 

uncertain language to do so. It was urged upon the court in 
that case that Congress had a paramount right to control the 
whole system of reclaiming arid lands in a state, whether owned 
by the United States or not, on the theory that "all powers 
which are national in scope" must be found vested in the Con- 
gress of the United States." Such a view the court held to be 
in direct conflict with the general established doctrine that the 
national government is a government of enumerated powers 
and also with the specific provisions of the Tenth Amendment. 
"This amendment," declared the court, "which was seemingly 
adopted with prescience of just such contention as the present, 
disclosed the widespread fear that the national government 
might, under the pressure of a supposed_general welfare, attempt 
to exercise powers which had not been granted. With equal de- 
termination the f ramers intended that no such assumption should 
ever find justification in the organic act, and that if, in the future, 
further powers seemed necessary, they should be granted by the 
people in the manner they had provided for amending that act. 
It reads : 'The powers not delegated to the United States by the 
Constitution, nor prohibited by it to the States, are reserved to the 
States respectively, or to the people.' The argument of counsel 
ignores the principal factor in this article, to wit, 'the people.' Its 
principal purpose was not the distribution of power between the 
United States and the states, but a reservation to the people of 
all powers not granted." It would seem from this opinion that 
President Roosevelt's "twilight zone" is firmly intrenched in our 
constitutional system and that those who hope to develop a na- 
tional police power by interpretation or by any method but 
amendment are doomed to disappointment. 13 

Principle of Implied Pozvers 
It is perfectly certain that under the doctrine that Congress 
has no powers which are not enumerated in the constitution it 
would have been quite impossible to develop a national police 

13 This doctrine of a general, inherent, unennmerated power of Con- 
gress is not to be confused with what Story termed "resulting powers," or 
those deduced from several or all of the enumerated powers of Congress. 
See Commentaries, 5th ed., II, Sec. 1256. Among the examples of such 
"resulting powers" are the power to exercise the right of eminent domain. 
Kohl v. United States, (1875) 91 U. S. 36,7, 23 L. Ed. 449; the power to 
issue legal tender notes, Juilliard v. Greenman, (1884) 110 U. S. 421, 28 L. 
Ed. 204, 4 S. C. R. 122; and the power to exclude aliens, Fong Yue Ting 
v. United States, (1893) 149 U. S. 698. 37 L. Ed. 905, 13 S. C. R. 1016. See 
Willoughby, Constitution, I, Sees. 37, 38. 



296 MINNESOTA LAW REVIEW 

power were it not for the fact that the scope of congressional 
authority was vastly increased, and the possibility of ever-multi- 
plying extensions of power opened up, by the establishment upon 
a firm foundation of the so-called doctrine of implied powers. 
It will be recalled that under the Articles of Confederation "Each 
State retains its sovereignty, freedom, and independence, and 
every power, jurisdiction, and right, which is not by this confed- 
eration expressly delegated to the United States in Congress as- 
sembled." 14 When the Tenth Amendment was being debated by 
Congress in 1789 a motion was made to insert there also the word 
"expressly" before the word "delegated." This motion, however, 
was rejected. 15 The bitter controversy which raged between the 
Federalists and the anti-Federalists as to whether or not Congress 
might exercise powers which were not expressly conferred was 
not settled finally and authoritatively until Marshall's famous 
opinion in 1819 in the case of McCulloch v. Maryland. 16 It was 
in that opinion that Marshall gave his classic statement of the 
doctrine of implied powers : "Let the end be legitimate, let it be 
within the scope of the Constitution, and all means which are 
appropriate, which are plainly adapted to that end, which are not 
prohibited, but are consistent with the letter and spirit of the 
Constitution, are constitutional." Thus the ghost of strict con- 
struction was laid forever, at least so far as the Supreme Court 
was concerned ; and in 1884 Mr. Justice Miller, by way of giving 
it a suitable epitaph, took occasion to allude to "the old argument, 
often heard, often repeated, and in this court never assented to, 
that when a question of the power of Congress arises the advocate 
of the power must be able to place his finger on the words which 
expressly grant it." 17 

Thus it will be seen that while the doctrine of enumerated 
powers imposes upon Congress the necessity of finding among its 
delegated powers what has been aptly termed "a definite consti- 
tutional peg" upon which to hang every exercise of the national 
police power, the doctrine of implied powers, or the liberal con- 
struction of congressional authority, has made it possible to hang 
upon those "pegs" an enormous amount of salutary legislation in 
the interest of the national health, safety, and well being. The 

14 Art. II. Italics are the author's. 

15 Annals of Congress, I, p. 768. 
« (1819) 4 Wheat. (U.S.) 316. 

« Ex parte Yarbrough. (1884) 110 U. S. 651, 658, 28 L. Ed. 274, 4 S. C 
R. 152. 



THE NATIONAL POLICE POWER 297 

"pegs" themselves are few in number, the only important ones 
being the power to regulate commerce, the power to tax, and the 
power to establish and run the postal system ; but the police legis- 
lation which they have been made to support deals with anything 
from the white slave traffic to speculation in cotton. 

Limitations on the National Police Power 

In the exercise of its police power Congress is subject to three 
definite constitutional limitations. The first of these limitations 
has already been outlined: Congress must, in passing police legis- 
lation, use an enumerated power ; in other words, there must 
always be a constitutional peg. This would seem on first thought 
to be entirely obvious. Yet occasionally Congress has tried, 
always unsuccessfully, to do without the peg. In 1867 Congress 
forbade the sale of illuminating oils which were below a certain 
fire test. 18 The law was declared invalid because it was entirely 
unrelated to any of the delegated powers 19 of Congress. It was 
not a regulation of interstate commerce; it was not a tax; and 
Congress did not pretend that it was. For the same reason the 
act of 1876 punishing the counterfeiting of trademarks and the 
sale of counterfeit trademark goods 20 was declared unconstitu- 
tional. 21 The excerpt quoted above 22 from the opinion of the 
court in Kansas v. Colorado emphasizes the same point. In all 
of these cases Congress had tried to pass police regulations with- 
out finding a constitutional peg on which to hang them. 

The second limitation requires that a real relevancy exist be- 
tween the police regulation and the peg upon which it is hung. 
Assuming that Congress in exercising its police power uses one of 
its delegated powers and labels its act accordingly as a tax law, a 
regulation of commerce, or the like, the law must then pass the 
test : is there a reasonable enough connection between the law 
Congress has passed and the constitutional grant of power on which 
Congress has relied in passing it to warrant its being regarded as 
a regulation of commerce, or the mails, or the like? If our courts 

is Act of March 2, 1867, Chap. 169 Sec. 29, 14 Stat, at L. 484. 

is United States v. De Witt, (1870) 9 Wall. (UiS.) 41. The title of the 
act was "An Act to amend existing Laws relating to Internal Revenue, 
and for other Purposes." The section involved here must have been, one 
of those passed "for other purposes," for it made no reference to any tax. 

20 Act of August 14, 1876, 19 Stat, at L. 141. 

2i Trade-Mark Cases, (1879) 100 U. S. 82, 25 L. Ed. 550. 

22 Supra, p. 295. 



298 MINNESOTA LAW REVIEW 

in determining the validity of legislation took account of the 
motives of law-makers, these motives would in the main tend to 
become the test of the validity of the law; but since the courts 
ignore those motives and take legislation at its face value, the 
relevancy of the law to its label becomes the test. In other words, 
it is proper enough for Congress to use its power over interstate 
commerce as a means of protecting the national health or morals ; 
but Congress must not get so absorbed in the work of protecting 
the national health or morals that it forgets that it is, after all, 
supposed to be regulating interstate commerce. When this test 
was applied to the law passed in 1907 by which Congress made it 
a felony for any person to harbor an alien prostitute within three 
years after her entrance into this country, 23 the court found that 
while the authority of Congress to regulate immigration was un- 
doubted and while the law of which the provision in question was 
a part was entitled "An Act to Regulate the Immigration of Aliens 
into the United States," nevertheless that provision did not as a 
matter of fact regulate immigration. 24 "The validity of the provi- 
sion in question," declared the court, "should be determined from 
its general effect upon the importation and exclusion of aliens. 
But it is sufficient to say that the act charged has no significance in 
either direction." The provision was invalid because it did not 
bear a sufficiently close relation to anything over which the consti- 
tution gives Congress authority to act. In a case which will be 
discussed at a later point 25 it was held that the provision of the 
Erdman Act forbidding interstate carriers to discharge employees 
because of membership in labor organizations was not a legiti- 
mate exercise of congressional authority because there was no 
connection between interstate commerce and membership in a 
labor union. 26 In the other cases which will be considered in the 
course of this article it will be seen that no law which Congress 
has passed in the exercise of a national police power has been 
upheld unless the court has, after careful scrutiny of this point, 



2 3 Act of February 20, 1907, 34 Stat, at L. 898. 

2 4 Keller v. United States, (1909) 213 U. S. 138, 53 L. Ed. 737, 29 S. C. 
R. 470, 16 Ann. Cas. 1066. 

25 Adair v. United States, (1908) 208 U. S. 161, 52 L. Ed. 436, 28 S. C. 
R. 277, 13 Ann. Cas. 764. See infra, pp. 308, 317. 

26 Professor Goodnow takes the view that this part of the opinion is 
dictum, since the court had already declared the provision under consider- 
ation to be a violation of the due process of law clause of the Fifth 
Amendment. Social Reform and the Constitution, 81 et seq. 



THE NATIONAL POLICE POWER 299 

been convinced that the law was at the same time a real and sub- 
stantial exercise of one of the enumerated powers of Congress. 

The third limitation, or set of limitations, upon the national 
police power is to be found in the specific prohibitions upon con- 
gressional authority contained in the constitution and particularly 
in the bill of rights. These restrictions operate in a perfectly 
obvious and direct fashion. Congress may use its delegated 
powers for the protection of the national welfare; but in so doing 
it must not take life, liberty, or property without due process of 
law, take private property for public use without just compen- 
sation, interfere with religious liberty, or do any of those things 
which it is definitely forbidden by the constitution to do. This 
third limitation rests upon the well-established principle that the 
specific prohibitions of the constitution act as restraints upon the 
general grants of powers to Congress. 27 The restriction of due 
process of law is the one perhaps most commonly enforced against 
exercises of the national police power, particularly those passed 
under the commerce clause ; but in the exercise of the power over 
the postal system for the protection of the national morals or 
safety the question has sometimes arisen whether or not Congress 
has violated the guarantees of freedom of the press, or the guar- 
antee against unreasonable searches and seizures. 28 

In the light of the foregoing constitutional principles and 
limitations, it is the purpose of the present article to discuss the 
police power which Congress has exercised under the grant of 
authority to regulate commerce; and to mark out the scope and 
variety of the protection which has been accorded the national 
safety, health, morals, and general welfare in this somewhat in- 
direct and roundabout way. 

General Nature and Scope of the Commerce Power 

If one were obliged to name the most potent cause leading to 
the calling of the Convention of 1787 he would not hesitate in 
choosing the need for a national control over foreign and inter- 



27 Story, Constitution, II, Sec. 1864 et seq. Monongahela Navigation Co. 
v. United States, (1893) 148 U. S. 312, 336. 37 L. Ed. 463. 13 S. C. R. 622. 

28 Ex parte lackson, (1877) 96 U. S. 727. 24 L. Ed. 877; In re Rapier. 
(1892) 143 U. S. 110, 36 L. Ed. 93, 12 S. C R. 374; Lewis Publishing Co. 
v Morgan, (1913) 229 U. S. 288, 57 L. Ed. 1190, 33 S. C. R. 867; Public 
Clearing House v. Coyne, (1904) 194 U. S. 497, 48 L. Ed. 1092, 24 S. C. R. 
789. 



300 MINNESOTA LAW REVIEW 

state commerce. That there was scant discussion of the problem 
in the Convention was perhaps due to the unanimity of convic- 
tion among the members of that body that the power to regulate 
commerce should unquestionably rest in the new Congress. Since 
the adoption of the constitution no small part of the time of Con- 
gress has been occupied with the exercise of this power, and 
no small part of the time of the Supreme Court has been spent in 
passing upon the constitutionality and meaning of those laws. 
Considering the wide range of instrumentalities and transactions 
which have come to be included in the term commerce it is but 
natural that the authority to regulate it should serve as the con- 
stitutional basis for the development of a wide national police 
power. 

The constitution confers upon Congress the" power to regulate 
three kinds of commerce: first, "with foreign nations," second, 
"among the several states," and third, "with the Indian tribes." 29 
The power given in respect to each of these is the same, that is, 
the power to "regulate" ; and there is nothing in the language 
used to indicate that the framers of the constitution had in mind 
any distinctions as to the extent of the power of Congress over 
each type. Congress early utilized its authority over these differ- 
ent classes of commerce, however, in different ways, to meet 
^j^ely different problems, and apparently without stopping to 
discuss whether its power over one was greater than over an- 
other. It was not until railroad transportation reached a high 
point of development that Congress, a full century after the fram- 
ing of the constitution, began to turn its mind seriously to the 
problems of interstate commerce regulation. But in the mean- 
time the regulations of foreign and Indian commerce had been 
numerous and rigorous in character. The question has, therefore, 
become pertinent whether Congress actually does have exactly 
the same power over interstate commerce that it enjoys over 
commerce with foreign nations and with the Indian tribes, or 
whether that power is more restricted. Especially has it been re- 
peatedly urged by those interested in the expansion of a national 
police power that Congress could exercise every power over inter- 
state commerce which it could exert in controlling foreign com- 
merce. 30 

29 Art. I, Sec. 8. 

30 This position has been taken, for instance, by those who believe 
that Congress may restrict child-labor by means of its control over inter- 



THE NATIONAL POLICE POWER 301 

It is possible to cite several cases in which the Supreme Court 
has expressed the opinion that there is no difference between the 
powers of Congress over foreign and interstate commerce. 31 Mar- 
shall voiced this view in Gibbons v. Ogden;- 2 and in 1888 Mr. 
Justice Mathews in Bowman v. Chicago, etc., Ry. Co. declared, 
"The power conferred upon Congress to regulate commerce among 
the States is indeed contained in the same clause of the Constitu- 
tion which confers upon it power to regulate commerce with 
foreign nations. The grant is conceived in the same terms, and 
the two powers are undoubtedly of the same class and character 
and equally extensive." 33 While these statements sound perfectly 
conclusive and final, the fact remains that in passing upon the 
validity of several of the congressional police regulations over 
interstate commerce the court, though urged to do so, has steadily 
declined to uphold such regulations on the ground that similar 
police restrictions applicable to foreign commerce have been sus- 
tained. 34 A substantial body of opinion has grown up in support 
of the view that there is, after all, a difference between the two 
powers. It is urged by an eminent authority that "although the 
three classes of commerce are thus included in the same clause 
and in the same terms in the enumeration of powers, they are 
clearly distinguishable in their historic setting and constitutional 
import, and the laws which are necessary and proper in regulating 
commercial intercourse with foreign nations and with the Indian 
tribes may not be necessary and proper in regulating such com- 
mercial intercourse between the states." 35 Without anticipating 
the more detailed discussion of this problem appropriate at a later 
point in this article, it may be suggested that Congress has actu- 
ally exercised a police power over foreign commerce which there 
is reason to believe would be regarded as beyond its proper 
authority if applied to commerce among the several states. And 
while there is no authoritative judicial pronouncement upon this 
question, an authority over interstate commerce which does not 



state commerce. This point will be further considered in a later section 
of this article. 

31 For citation of these cases, with comment, see note by E. B. Whitney, 
7 Yale Law Tour. 294. 

32 (1824) *9 Wheat. (U.S.) 1. 228, 6 L. Ed. 23. 

33 (1888) 125 U. S. 465, 482, 31 L. Ed. 700, 8 S. C. R. 689. 

34 This was true both in the Lottery Case and in the recent child-labor 
case; it will be treated more fully in connection with the latter case. 

35 Judson, Interstate Commerce, 3rd ed., Sec. 6. 



302 MINNESOTA LAW REVIEW 

extend to the exclusion from the channels of that commerce of the 
products of factories employing child-labor 36 can hardly be called 
co-extensive with an authority over foreign commerce which ex- 
cludes from our shores the products of convict-labor. 37 

The relationship between the national government and the In- 
dians has always been regarded as anomalous, and it would be 
unprofitable to enter upon any extended comparison of the power 
of Congress over interstate commerce with that over commerce 
with the Indian tribes. Our control over these people has been 
paternalistic in character. 38 Because of the importance and deli- 
cacy of the problem, Congress has regulated intercourse with the 
Indians with a rigorous hand. It has forbidden commercial deal- 
ings with them in certain commodities, as, for example, intoxi- 
cating liquors; 39 and has even gone to the length of forbidding 
any one to trade with them without a license issued by the federal 
government. 40 It seems probable that restraints have been placed 
upon commerce with the Indians which could not be imposed upon 
ordinary trade relations between citizens of the states. 

The following discussion of the police power which Congress 
has come to exercise under the commerce clause may properly be 
confined, therefore, to the problems relating to interstate com- 
merce. This is appropriate not only because it is in that field of 
regulation that the national police power has developed in most 
striking and most varied form, but also because the preceding 
paragraphs make it clear that if there is any constitutional dis-' 
tinction among the powers of Congress over foreign, interstate, 
and Indian commerce the power over interstate commerce is the 
most narrowly restricted ; and accordingly whatever police power 
Congress may exercise over interstate commerce it may exercise 
over foreign and Indian commerce. 



36 Hammer v. Dagenhart. (1918) 247 U. S. 251, 38 S. C .R. 529. 

37 Act of October 3, 1913, 38 Stat, at L. 195. The validity of this law 
has never been questioned and would seem, in the light of numerous prec- 
edents, to be unquestionable. 

38 Matter of Heff, (1905) 197 U. S. 488, 498, 49 L. Ed. 848, 25 S. C. R. 
501 (overruled in United States v. Nice, [1916] 241 U. S. 591, 36 S. C. R 
696). 

39 Held valid in United States v. Holliday, (1866) 3 Wall. (U.S.) 407, 
18 L. Ed. 182; United States v. Forty-three Gallons of Whiskey, (1876) 
93 U. S. 188, 23 L. Ed. 846. 

40 Upheld in United States v. Cisna, (1835) 25 Fed. Cas. 422. See Act 
of March 3, 1903, 32 Stat, at L. 1009. 



THE NATIONAL POLICE POWER 303 

While the police regulations which Congress has passed under 
its authority to regulate interstate commerce have been exceed- 
ingly numerous and have dealt with a wide range of topics, from 
locomotive ashpans to obscene literature, they may all be placed 
for convenience in four groups, according to the general purpose 
of their enactment and the constitutional principles upon which 
they are based. (I) In the first group may be placed those regu- 
lations in which Congress has exercised police power for the pro- 
tection and promotion of interstate commerce itself by the enact- 
ment of such laws as the safety appliance acts, the anti-trust acts, 
and other regulations designed to keep that commerce safe, effi- 
cient, and unobstructed. (II) The second group comprises the 
cases in which the law forbids the use of interstate commerce as 
a medium or channel for transactions which menace the national 
health, morals, or welfare. In this class would be placed the Pure, 
Food Act, the White Slave Act, and other statutes by which Con- 
gress, instead of protecting commerce itself from danger, pro- 
tects the nation from the misuse of that commerce. (Ill) The 
third group consists of the enactments by which Congress co-oper- 
ates with the states by forbidding the use of the facilities of inter- 
state commerce for the purpose of evading or violating state police 
regulations. Here would be found such laws as the Webb- 
Kenyon Act, excluding from interstate commerce shipments of 
liquor consigned to dry territory. (IV) In the last group should 
be placed the Keating-Owen Child-Labor Act of 1916, by which 
Congress attempted to deny the privileges of interstate commerce 
to articles produced under conditions which Congress disapproved 
but which it had no direct power to control. Careful con- 
sideration may profitably be given to each of these groups. 



I. National Police Power for Promotion and Protection 

of Commerce 

1. Appliances and Physical Regulations Necessary for Safety. 
It is but natural that Congress should feel that one of the most 
obvious and necessary duties imposed upon it by the grant of 
power to regulate commerce is the duty to pass police regulations 
to protect from destruction, loss, or damage the lives, limbs, and 
property of persons concerned in the processes or transactions of 
interstate commerce, whether as passengers, shippers, or em- 



304 MINNESOTA LAW REVIEW 

ployees. As early as 1838 laws were passed requiring the in- 
stallation of safety devices upon steam vessels. 41 Beginning with 
a statute passed in 1866 Congress has rigorously controlled the 
transportation on land and water of explosives. 42 But it was not 
until 1893 that Congress began to enact the comprehensive set of 
safety appliance acts now applicable to interstate railroads. 43 The 
first of these acts was the Automatic Coupler Act, 44 which has 
been supplemented by more recent laws requiring, among other 
things, the use of ashpans 45 on locomotives, the inspection of 
boilers, 46 and the use of ladders, hand-brakes, drawbars, and 
similar devices on cars. 47 To the same general purpose are the 
statutes requiring railroads to make full reports to the Interstate 
Commerce Commission regarding all accidents. 48 A statute of 
1913 protects interstate commerce from another type of loss by 
making criminal the unauthorized breaking of the seals of rail- 
road cars containing interstate or foreign shipments. 49 

The purpose of Congress in passing these laws is perfectly 
plain. Most of them, following the pioneer Safety Appliance 
Act of 1893, declare specifically that their object is "to promote 
the safety of employees and travellers upon railroads." The 
courts have uniformly recognized this purpose. "The Safety 
Appliance Act," declares one federal judge, "is essentially a police 
regulation. Its general purpose is humanitarian — the safeguard- 
ing of employees from injury and death." 50 In the words of 
another court, "the object of Congress in passing the safety ap- 
pliance acts was undoubtedly to safeguard interstate commerce, 
the life of the passengers, and the life and limb of the employees 



41 Act of July 7, 1838, 5 Stat, at L. 304 ; Act of March 3, 1843, ibid., 626. 

42 Act of July 3, 1866, 14 Stat, at L. 81. For legislation on this subject 
now in force, see the U. S. Criminal Code of March 4, 1909, 35 Stat, at L. 
1134, Sees. 232-236. 

« Collected in Comp. Stat. 1918, Sees. 8605-8650 ; 3 U. S. S. A. 480-530. 

44 Act of March 2, 1893, 27 Stat, at L. 531. 

45 Act of May 30, 1908, 35 Stat, at L. 476. 

46 Acts of February 17, 1911, 36 Stat, at L. 913, and March 4, 1915, 38 
ibid., p. 1192. 

^ Act of April 14, 1910, 36 Stat, at L. 298. 

48 Act of May 6, 1910, 36 Stat, at L. 351; Act of February 17, 1911, 
ibid., p. 216. 

49 Act of February 13. 1913, 37 Stat, at L. 670. Upheld in Morris v. 
United States, (1916) 229 Fed. 516. 

50 United States v. Philadelphia, etc., Ry. Cc 0915 ^ 223 Fed. 215, 216. 



THE NATIONAL POLICE POWER 305 

engaged therein."'' 1 The Supreme Court itself has declared the 
purpose of this legislation to be "to promote the public welfare 
by securing the safety of employees and travellers."'' 2 

That these statutes designed to insure the physical safety of 
interstate commerce are police regulations falling well within the 
recognized limits of congressional power is too obvious to call 
for argument ; so obvious, in fact, that the Supreme Court has 
never been asked to decide a case in which it was squarely con- 
tended that acts of this kind were not natural and legitimate regu- 
lations of commerce."''' Moreover, in several cases involving the 
meaning and application of these statutes, as well as in cases in- 
volving analogous exercises of the commerce power, that tribunal 
lias alluded to the safety appliance acts in terms which place the 
question of their validity in the realm of settled law. 54 And in- 
deed if the power to regulate commerce does not include the 
power to make reasonable rules to secure the physical safety of 
the lives and property of travellers, shippers, and employees, it 
may well be inquired what conceivable kind of commercial regu- 
lation could be regarded as legitimate. 

2. Regulations of Labor Necessary for Safety of Interstate 
Commerce, (a) Hours of Service Act: It came at last to be 
recognized that safety appliances and regulations were not enough 
in- and of themselves to insure the physical safety of interstate 
commerce. There were plenty of gruesome proofs of the fact 
that life and property on interstate railroads were as much 
jeopardized by the deadening fatigue of a locomotive engineer 
as by the absence of block signals or automatic couplers. Ac- 
cordingly, in 1907 Congress passed the Hours of Service Act, 55 
making it unlawful for any interstate carrier to employ a train- 
si United States v. Atl. Coast Line R. Co., (1913) 214 Fed. 498, 499. 
52 Tohnson v. So. Pacific Co., (1904) 196 U. S. 1, 17, 49 L. Ed. 365, 25 
S. C.'R. 158. 

33 The validity of these laws has been passed upon squarely, however, 
in numerous decisions of the lower federal courts. For extensive citation 
of cases, see Thornton, The Federal Employers' Liability Act, 3rd ed., p. 
334: Richey, Federal Employers' Liability, Safety Appliance, and Hours 
of Service Acts, 2nd ed.. Sec. 215. 

54 Tohnson v. So. Pacific Co.. supra ; Schlemmer v. Buffalo, etc.. Ry Co., 
(1907) 205 U. S. 1. 51 L. Ed. 681. 27 S. C. R. 407; Employers' Liability 
Cases (1908) 207 U. S. 463. 52 L. Ed. 297. 28 S. C. R. 141 : Southern Ry. 
Co. v. United States, (1911) 222 U. S. 20, 56 L. Ed. 72. 32 S. C. R. 2; 
Second Emplovers' Liability Cases, H912) 223 U. S. 1, 56 L. Ed. 327, 32 
S. C. R. 169. 38 L. R. A. (N.S.) 44; Wilson v. New. (1917) 243 U. S. 332, 
61 L. Ed. 755. 37 S. C. R. 298. 

ss March 4, 1907, 34 Stat, at L. 1415. 



306 MINNESOTA LAW REVIEW 

man for a period longer than sixteen consecutive hours and re- 
quiring definite rest periods in every twenty-four hours. The 
hours of train dispatchers and telegraphers were still further re- 
duced, thirteen consecutive hours being the maximum where only 
day work was required and nine hours out of twenty-four where 
both night and day work was expected. 

It is important to bear in mind that such a limitation upon 
hours of service as that provided for in the act of 1907 stands in 
sharp contrast, both in purpose and in constitutional justification, 
to such a statute as the Adamson Law providing for a standard 
eight-hour day on interstate railroads. While the employees 
affected by the Hours of Service Act would of course benefit by 
the relief granted from continuous labor for long hours, such 
relief constituted only a secondary motive for the passage of the 
act; certainly the legal authorization of a sixteen-hour day does 
not indicate a very vigorously humanitarian interest in the welfare 
of the workingmen affected. The object of the act was quite 
clearly to promote the safety of interstate commerce on railroads ; 
and the title of the statute specifically declares it to be "An Act 
to Promote the Safety of Employees and Travellers upon Rail- 
roads by Limiting the Hours of Service of Employees Thereon." 
Viewed thus as a safety regulation, there could be no serious 
question as to the validity of the act; and in upholding it as a 
valid exercise of the power of Congress to regulate commerce 
Mr. Justice Hughes declared : "In its power suitably to provide 
for the safety of employees and travelers, Congress was not 
limited to the enactment of laws relating to mechanical appliances, 
but it was also competent to consider, and to endeavor to reduce, 
the dangers incident to the strain of excessive hours of duty on 
the part of engineers, conductors, train dispatchers, telegraphers, 
and other persons embraced within the clause defined by the 
act." 56 At a later point in this article 57 it will be made clear that 
no such argument as this was applied to the Adamson Law, and 
it was sustained by the Supreme Court on widely different 
grounds. 

(b) Employers' Liability Statutes: When Congress, after 
considerable prodding by an energetic and persistent president, 58 

se Baltimore & Ohio R. Co. v. Int. Com. Comm, (1911) 221 U. S. 612, 
55 L. Ed. 878, 31 S. C. R. 621. 

"Infra, p. 315. 

58 President Roosevelt urged the passage of the act in various mes- 
sages to Congress. 1 



THE NATIONAL POLICE POWER 307 

finally passed the first Employers' Liability Act in 1906,™ there 
is every reason to believe that the members of that body were 
actuated by a humanitarian interest in the welfare of the work- 
men on interstate railroads. Like the state legislatures which had 
passed similar laws, they wished to take away the unjust and 
oppressive burdens which the common law doctrines of employ- 
ers' liability had placed upon the shoulders of the injured work- 
man. Senator Dolliver, who was a particularly vigorous pro- 
ponent of the law, expressed in the senate his belief that there was 
not a single senator "who does not recognize the equity and justice 
involved" in such legislation, and added that "there is scarcely an 
American state in these recent years which has not taken this 
step forward in industrial justice." 60 The federal employers' lia- 
bility laws were passed in order to guarantee to the men to whom 
they applied a reasonably square deal. 

It must, therefore, have been something of a surprise to the 
members of Congress who had fought and voted for this legis- 
lation to learn from the Supreme Court that what they had really 
passed was not an act to secure economic justice in certain rela- 
tions between employers and employees in interstate commerce, 
but a safety regulation. 61 It will throw some light upon the 
nature of the limitations resting upon the police power of Con- 
gress to understand why it is that from the standpoint of consti- 
tutional law there is no substantial difference between the Em- 
ployers' Liability Act and the Boiler Inspection Act. 

It is not difficult to follow the steps in the chain of reasoning 
which led the Supreme Court to this somewhat startling result. 
In the first place, the power under which Congress is purporting 
to act in passing the Employers' Liability Act is the authority to 
regulate commerce ; Congress has no power to regulate labor as 
such. It follows, therefore, that only those regulations of the 
relations between master and servant which are at the same time 



50 June 11. 1906. 34 Stat, at L. 232. 

60 Quoted by Thornton in his excellent summary of the legislative his- 
tory of the act. See Thornton, Federal Employers' Liability Act, 3rd ed. 

G1 The first Employers' Liability Act was declared unconstitutional by 
the Supreme Court in the Employers' Liability Cases, (1908) 207 U. S. 463, 
52 L. Ed. 297, 28 S. C. R. 141, because its provisions extended to include the 
employees of interstate carriers even when such employees were not them- 
selves engaged in any of the processes of interstate commerce. Congress 
remedied this defect in passing the second statute, April 22. 1908, 35 Stat, 
at L. 65. which was held valid in the Second Employers' Liabilitv Cases, 
(1912) 223 U. S. 1. 56 L. Ed. 327, 32 S. C. R. 169, 38 L. R. A. (N.S.) 44. 



308 MINNESOTA LAW REVIEW 

regulations of commerce are within the power of Congress. Only 
three years before, the court, speaking through Mr. Justice 
Harlan in the Adair case, had declared that one of the reasons 
why Congress had exceeded its power when it forbade interstate 
carriers to discharge any employee because he belonged to a labor 
union was because "there is no such connection between interstate 
commerce and membership in a labor organization as to authorize 
Congress" to pass such a law, 62 Now if the only object and result 
of the employers' liability statutes was to secure a more equitable 
incidence of the burden of industrial accidents between the em- 
ployers and the employees in interstate commerce and thereby 
to protect the welfare of a certain economic group, then Congress 
in passing such an act had again exceeded its authority, since it 
could hardly be shown that the statute really regulated interstate 
commerce or bore any reasonable relation to it. But if, on the 
other hand, it could be shown that the act would promote or 
protect interstate commerce in some definite way, then, of course, 
it could be upheld. Counsel for the government therefore wisely 
urged upon the court with great vigor the view that "if the con- 
ditions under which the agents or instrumentalities do the work 
of commerce are wrong or disadvantageous, those bad conditions 
may and often will prevent or interrupt the act of commerce or 
make it less expeditious, less reliable, less economical, and less 
secure." 63 It is a well established principle of, constitutional 
construction that a statute, when possible, should be so construed 
as to save it ; and the court readily adopted the alluring argument 
which made it possible to sustain the validity of the act. It de- 
clared its belief that "the natural tendency of the changes de- 
scribed is to impel the carriers to avoid or prevent the negligent 
acts and omissions which are made the bases of the rights of 
recovery which the statute creates and defines ; and as whatever 
makes for that end tends to promote the safety of the employees 
and to advance the commerce in which they are engaged, we 
entertain no doubt that in making those changes Congress acted 
within the limits of the discretion confided to it by the Consti- 
tution." 64 Thus a statute which, viewed merely as a measure to 
insure economic justice to the employees of interstate carriers, 

62 Note 25, supra. 

63 Second Employers' Liability Cases, note 61, supra, 223 U. S. at p. 48. 

64 Ibid., p. 50. For a criticism of this point of view, see L. J. Hall, The 
Federal Employers' Liability Act, (1910) 20 Yale Law Jour. 122, in which 



THE NATIONAL POLICE POWER 309 

would doubtless have been invalidated, was enabled to pass the 
scrutiny of the courts by donning the somewhat transparent dis- 
guise of a regulation to prevent railroad accidents. 

3. Regulations Necessary to Prevent the Obstruction or Sus- 
pension of Interstate Commerce. It has been suggested above 
that perhaps the most important cause for the formation and 
adoption of our federal constitution was the desire to establish a 
government with power to regulate foreign and interstate com- 
merce according to a uniform rule and thereby to put an end to 
the chaos of obstructions, burdens, and inharmonious systems of 
control affecting that commerce which emanated from the jeal- 
ousies of thirteen separate commonwealths. The very first case 
in which the commerce clause of the new constitution came before 
the Supreme Court for interpretation was a case in which the 
court refused to allow the state of New York to obstruct the 
freedom of interstate commerce by granting to one of its citizens 
an exclusive right to navigate the Hudson River by steamboat. 05 
Since that time no small proportion of the judicial attention which 
the commerce clause has received has been directed to the prob- 
lem of preventing state interference with interstate commerce. 
It would seem, therefore, that in exercising its delegated power to 
regulate commerce Congress could tread on no safer ground, 
could use its authority in no way more clearly in harmony with 
the purpose for which it was conferred, than when it passed 
regulations designed to prevent the obstruction or suspension of 
commerce. 

And while, curiously enough, the positive enactments of this 
kind to be found in the federal statute books are not quite so 
numerous nor elaborate as one might expect, yet they present 
some problems of peculiar interest to those interested in the de- 
velopment of a national police power. They may be conveniently 
arranged in the following groups, each of which merits some 
comment. 

(a) Regulations to Prevent Physical Obstructions: It is un- 



it is urged that "it is only by an indirect and unsatisfactory method of 
reasoning that it can be said that safety in transportation is promoted by 
increasing the amount of damages which a railroad company must pay for 
the acts of carelessness of its men in their relations to each other." It will 
be noted that the article was written before the Second Employers' Lia- 
bility Cases were decided, but its reasoning is applicable to the doctrine of 
those cases. 

es Gibbons v. Ogden. (1824) 9 Wheat. (U.S.) 1. 6 L. Ed. 23. 



310 MINNESOTA LAW REVIEW 

necessary to enlarge upon the fact that Congress has full author- 
ity to penalize any act which results in the physical obstruction 
or interference with commerce. "Any offense," declared Mr. 
Justice Story in 1838, "which thus interferes with, obstructs, or 
prevents such commerce and navigation, though done on land, 
may be punished by Congress, under its general authority to make 
all laws necessary and proper to execute their delegated constitu- 
tional powers." 66 Congress has accordingly enacted a fairly sub- 
stantial penal code designed to preserve and protect navigable 
rivers and harbors from obstruction, to regulate the erection of 
bridges and piers, and in various other ways to keep commerce 
by water free and untrammeled. 67 There would seem to be no 
doubt as to the existence of similar congressional authority to 
afford this kind of protection to the facilities of interstate land 
commerce; but, with the exception of the Larceny Act of 1913, 
already mentioned above, 68 and some of the recent war legisla- 
tion, 69 Congress has, except in emergencies which will be alluded 
to later, 70 preferred to rely upon the criminal laws of the several 
states to prevent the physical obstruction of interstate commerce 
by land. 

(b) Regulations to Prevent Economic Obstructions or Re- 
straints of Commerce. (1) By combinations of capital: It would 
not be relevant to the subject under consideration to launch out 
upon any extended discussion of the highly interesting and impor- 
tant laws Congress has passed for the purpose of solving the so- 
called trust problem. The fact that the policy of the federal gov- 
ernment toward trusts and monopolies has not always been happy 
in its conception or successful in its administration has little to 
do with the fact that the general underlying motives of that 
policy have always been the same : namely, to keep interstate 
commerce free from the obstacles and interferences resulting 
from monopoly and other combinations and conspiracies designed 
to destroy free competition and restrain trade. It will hardly be 

66 United States v. Coombs, (1838) 12 Pet. (U.S.) 72, 9 L. Ed. 1004. 

67 See U. S. Comp. Stat. 1918 Sec. 9909 et seq. 

68 Supra, p. 304, note 49. 

69 The War Materials Destruction Act of April 20, 1918. By the provi- 
sions of this act the instrumentalities and facilities of interstate commerce, 
or "war utilities" as they are called, are, along with "war materials" and 
"war premises," protected from wilful injury and destruction. The act 
rests, of course, upon the war power of Congress and not on the com- 
merce power. 

70 Infra, pp. 314, 315, notes 87, 88. 



THE NATIONAL POLICE POWER 311 

denied that these acts are police regulations designed for the pro- 
tection of commerce. The first of these statutes penalized certain 
specific acts, such as discriminations among shippers and rebating, 
which Congress deemed destructive to the freedom of competition 
desirable in interstate commerce. This type of regulation includes 
the Interstate Commerce Act of 1887 and the various amend- 
ments to it passed since that time. 71 Federal police regulations 
making certain acts criminal were soon found to be a very inad- 
equate means of freeing interstate commerce from monopolistic 
obstructions ; and so Congress, convinced that relief could be had 
by breaking up trusts, combinations, and conspiracies in restraint 
of trade, enacted the famous Sherman Act of 1890. 72 After two 
decades of sporadic and more or less ineffectual "trust-busting," 
Congress supplemented the Sherman Act by legislation designed 
to make the act more definite in meaning and effective in opera- 
tion. 73 This supplementary anti-trust act, known as the Clayton 
Act, was accompanied by the passage of the Trade Commission 
Act. 74 By the passage of this latter act Congress embarked upon 
a new policy in respect to combinations of capital — the policy of 
administrative control. While this act must still be regarded as 
a federal police regulation for the protection of commerce, the 
method employed for that purpose was the creation of an admin- 
istrative commission with power to investigate, advise, and issue 



- 1 Act of February 4, 1887, 24 Stat, at L. 379. The text of this act and 
the amendments thereto are set forth and discussed at length in Judson. 
Interstate Commerce, 3rd ed. See also, Fuller, The Interstate Commerce 
Act, (1915). One striking instance of this type of police regulation over 
interstate commerce is to be found in the commodities clause of the Hep- 
burn Act, June 29, 1906, 34 Stat, at L. 584. The purpose of this act was to 
compel the interstate railroads to dispose of such interests as they might 
have in the coal mining business by making it unlawful for them to carry 
in interstate commerce "any article or commodity other than timber and 
the manufactured products thereof, manufactured, mined or produced by 
it, or under its authority, or which it may own in whole or in part, or in 
which it may have an interest, direct or indirect . . ." The legislative 
purpose, however, was not effectuated, because the Supreme Court in pass- 
ing upon the constitutionality of the law construed it in such a way as to 
permit the railroad to transport coal from its own mines provided such 
coal had been sold by the railroad before such transportation took place. 
United States v. Delaware, etc., Co., (1909) 213 U. S. 366, 53 L. Ed. 836, 
29 S. C. R. 527. For an excellent discussion of the history, interpretation, 
and operation of the clause, see Kibler, The Commodities Clause (1916) : 
also Hand, the Commodities Clause and the Fifth Amendment, (1909) 22 
Harv. Law Rev. 250. 

-2 Act of July 2. 1890, 26 Stat, at L. 209. 

" The Clayton Act of October 15. 1914, 38 Stat, at L. 731. 

74 Act of September 26, 1914, 38 Stat, at L. 719. 



'312 MINNESOTA LAW REVIEW 

orders based upon definite findings of fact. Combinations of 
capital formerly in- bad odor merely because of their size and 
importance were to be kept within the law and prevented from 
interfering with the freedom of commerce by an active govern- 
mental supervision and co-operation. 

While the litigation which has arisen under these acts, or at 
least under the earlier ones, has been exceedingly voluminous 
and the courts have spent much time construing and applying 
them to the concrete problems which have arisen, there seems 
never to have been any serious question raised as to the authority 
of Congress to pass laws designed to accomplish the results which 
these acts sought to achieve. Such constitutional objections as 
have been urged against these enactments have been aimed at the 
details of method and procedure rather than at the validity of the 
legislative object. 75 

(2) By combinations of labor: While Congress seems never 
to have passed, under its commerce power, any police legislation 
which in express terms names labor organizations and forbids 
them to enter into conspiracies or to commit acts which would 
obstruct or suspend interstate commerce, several of its enact- 
ments are couched in terms broad enough to permit the courts 
to apply their restraints and prohibitions to combinations of 
laborers. 

This is true, in the first place, of the Interstate Commerce Act 
of 1887. 76 This act makes it unlawful for any common carrier 
subject to the provisions of the statute "to make or give any undue 
or unreasonable preference or advantage to any particular person, 
company, firm, corporation, or locality, or any particular descrip- 
tion of traffic, in any respect whatsoever, or to subject any par- 
ticular person, company, firm, corporation, or locality, or any 
particular description of traffic, to any undue or unreasonable 
prejudice or disadvantage." 77 It is specifically made criminal 
under heavy penalty for "any common carrier subject to the pro- 
visions of this act, or, when such common carrier is a corporation, 
any director or officer thereof, or any receiver, trustee, or lessee, 
agent, or person acting for or employed by such corporation" to 



75 Any doubt as to the validity of the Sherman Act was set at rest bv 
the decision in Addyston Pipe and Steel Co. v. United States. (1899) 175 
U. S. 211, 44 L. Ed. 136. 20 S. C. R. 96. 

70 Note 71, supra. 

77 Sec. 3. 



THE NATIONAL POLICE POWER 313 

do or conspire to do any of the unlawful acts above set forth. 7 * 
In 1893 Judge Taft held that these provisions were applicable to 
the officers and members of a brotherhood of locomotive engineers 
who had induced the railroad for which they worked to join 
them in a boycott against a railroad which was engaged in a strike 
because of its refusal to meet certain demands of its men. 79 As 
long as the men remained in the employ of the railroad they were 
subject to injunctions to restrain them from violations of these 
provisions. Judge Taft also declared t,hat a conspiracy on the part 
of the employees to violate these sections could be punished under 
the general provision of the Criminal Code penalizing those who 
"conspire to commit any offense against the United States. " s " It 
is thus clear that the Interstate Commerce Act is not only applic- 
able to common carriers but imposes restraints and obligations 
for the protection of interstate commerce upon labor organizations 
as well. sl 

In like- manner the Sherman Act 82 has been applied to acts of 
combinations of laborers when the effect of those acts was to 
interfere with interstate commerce or to restrain trade. It is 
unnecessary to enter here into a discussion of the question 
whether or not Congress actually intended to include the activities 
of labor organizations within the prohibitions of the act. 83 It is 
less important that Mr. Gompers and other labor leaders believed 
that Congress intended that labor unions should be outside the 
scope of the act than it is that the Supreme Court should have 
found the words of the statute so broad and inclusive that it 
could discover no legal basis for exempting labor unions from the 
operation of the act. The law declares in sweeping terms that 
"Every contract, or combination in the form of a trust, or other- 
wise in restraint of trade or commerce among the several states 
or with foreign nations, is herebv declared to be illegal." In 



78 Sec. 10. Italics are the author's. 

79 Toledo, etc., Ry. Co. v. Penn. Co., (1893) 54 Fed. 730; same case, 
ibid., p. 746. 

so Rev. Stat. Sec. 5440. 

81 For detailed discussion of this whole point, with citation of cases, see 
Judson, Interstate Commerce, 3rd ed.. Chap. 6 and Sees. 408-417; Martin, 
The Modern Law of Labor Unions, Chap. 14. 

82 Note 72, supra. 

83 A clear statement of both sides of the question is found in Laidler, 
Boycotts and the Labor Struggle, 170 et seq. 



314 MINNESOTA LAW REVIEW 

construing that act, the courts, with practical unanimity, 84 have 
steadily refused to make any distinction between combinations 
of capital and combinations of labor which were in restraint of 
trade. In numerous cases injunctions have been issued by the 
United States courts against such restraints of trade, or against 
more direct obstructions of commerce by labor organizations ; 85 
while in the Danbury Hatters case the Supreme Court held 
squarely that the provisions of the Sherman Act were applicable 
to trade unions so as to permit the recovery from the members of 
the hatters' union of triple damages by their employers whose 
business had been injured by a secondary boycott. 86 

During the Pullman strike of 1893 a federal circuit court 
issued an injunction based upon the provisions of the Sherman 
Act, restraining Eugene V. Debs and other officers of the Ameri- 
can Railway Union from interfering in any way with interstate 
commerce or the mails. 87 When the case came before the Su- 
preme Court on appeal, however, the court declined -to regard 
the Sherman Act as the necessary source of the authority of the 
court to issue the injunction (although not denying that it did 
confer such power), but declared that the broad grant of author- 
ity to the national government to regulate interstate commerce 
was sufficient in itself to warrant the granting by the courts of 
injunctive relief against those who obstructed or restrained such 



84 The only exception seems to be United States v. Patterson, (1893) 
55 Fed. 605, in which the court took the view that "restraints of trade" 
must be interpreted in the strict common law sense as meaning efforts to 
"monopolize or grasp the market." 

85 United States v. Workingmen's Amalgamated Council, (1893) 54 
Fed. 994, 26 L. R. A. 158; United States v. Debs, (1894) 64 Fed. 724. Other 
cases in Martin, op. cit, 246, 247, note 81, supra. 

86 Loewe v. Lawlor, (1908) 208 U. S. 274, 52 L. Ed. 488, 28 S. C. R., 301, 
13 Ann. Cas. 815. The result reached in this case would seem to be im- 
possible under the existing law. The Clayton Act of October 15, 1914, 
specifically declares that the labor of a human being is not to be regarded 
as a commodity or article of commerce and that "nothing contained in the 
anti-trust law shall be construed to forbid the existence and operation of 
labor, agricultural, and horticultural organizations instituted for the pur- 
pose of mutual help and not having capital stock or conducted for profit, 
or to forbid or restrain individual members of such organizations from 
lawfully carrying out the legitimate objects thereof, nor shall such organi- 
zations or members thereof be held or construed to be illegal combinations 
or conspiracies in restraint of trade under the anti-trust laws." While 
this act legalizes certain activities of labor organizations befor f regarded 
as illegal, it does not, of course, have the effect of permitf""" ? uiy direct 
and substantial obstructions of interstate commerce. 

87 United States v. Debs, (1894) 64 Fed. 724. 



THE NATIONAL POLICE POWER 315 

commerce. 88 From this decision it would seem, therefore, to 
follow that specific police legislation by Congress to prevent the 
obstruction of interstate commerce is unnecessary to enable fed- 
eral courts sitting in equity to prevent such obstruction. 

To classify the Eight-Hour Law, popularly known as the 
Adamson Law, sa which was passed by Congress in the autumn 
of 1916, as a police regulation to protect interstate commerce 
from obstruction and interference will seem at first a curious 
perversion of facts. But those who will recall the legislative 
history of the statute and examine carefully the opinion of the 
Supreme Court in the case in which the constitutionality of the 
law was upheld will be convinced that such a classification of the 
act is accurate from the standpoint both of legislative intention 
and of constitutional law. It seems perfectly clear that Congress 
passed the law at the request of President Wilson for the single 
purpose of averting the nation-wide railroad strike which there 
was every reason to believe would take place if the law were not 
passed. It is equally apparent that the Supreme Court upheld 
the law on the ground that its passage was necessary to accom- 
plish this result and avoid the threatened suspension of interstate 
commerce. This remarkable decision merits some little comment. 

In considering the validity of the Adamson Law. which was 
questioned in the case of Wilson v. New, 90 it was necessary for 
the court to apply the same tests which it has always applied 
to regulations of commerce enacted for police purposes. 01 In the 
first place, is the act a bona fide regulation of commerce; in the 
second place, assuming that it is, does it deprive any person of 
life, liberty, or property without due process of law? The court 
accordingly addressed itself to the question whether Congress 
was really regulating interstate commerce when it established 
an eight-hour day for trainmen on interstate railroads. The 
answer of the court to this question was that the act was a regu- 
lation of interstate commerce because its passage was necessary 
in order to prevent the complete suspension of that commerce. 
It alluded to the long list of acts, many of which have already 
been discussed in this article, by which Congress had sought to 
make interstate commerce safe and efficient. It mentioned par- 

88 In re Debs, (1895) 158 U. S. 564, 39 L. Ed. 1092, 15 S. C. R. 900. 

89 Act of September 3, 5, 1916, 39 Stat, at L. 721. 

so (1917) 243 U. S. 332, 61 L. Ed. 755, 37 S. C. R. 208. 
91 Supra, p. 297 et seq. 



316 MINNESOTA LAW REVIEW 

ticularly the Hours of Service Act, the Safety Appliance Acts, 
and the Employers' Liability Act, in all of which the power to 
regulate commerce had been used to control various relations 
between employers and employees. It then pointed out "how 
completely the purpose intended to be accomplished by the regu- 
lations which had been adopted in the past would be rendered 
unavailing or their enactment inexplicable if the power was not 
possessed to meet a situation like the one with which this statute 
[the Adamson Law] dealt. What would be the value of the 
right to a reasonable rate if all movement in interstate commerce 
could be stopped as the result of a mere dispute between the 
parties or their failure to exert a primary right concerning a 
matter of interstate commerce? Again, what purpose would be 
subserved by all the regulations established to secure the enjoy- 
ment by the public of an efficient and reasonable service if there 
was no power in government to prevent all service from being 
destroyed . . . ? And finally, to what derision would it not' 
reduce the proposition that government had power to enforce the 
duty of operation if that power did not extend to doing that 
which was essential to prevent operation from being completely 
stopped . . .?" 

The question whether the statute was in violation of the due 
process of law clause of the Fifth Amendment was considered 
by the court in a portion of the opinion which need not be treated 
in detail here. It is sufficient to say that the abridgment of 'the 
freedom of contract which the act entailed upon employers and 
employees was found constitutionally permissible because both 
were engaged in a business charged with a public interest and 
therefore subject to types of congressional regulation which 
could not be imposed upon any business except public utilities. 

It is important to notice that the opinion of Chief Justice 
White marks out an entirely new boundary line for the exercise 
by Congress of its police power over interstate commerce for the 
purpose of protecting that commerce from obstruction or suspen- 
sion. In the earlier cases in which the court had been obliged to 
decide whether or not a statute purporting to regulate commerce 
actually did so, it was the subject matter of the regulation which 
was examined. If the provisions of the statute bore a reasonable 
and direct relationship to interstate commerce, then, in the ab- 
sence of other constitutional defects, it was held a valid regulation 
of commerce; if not, it was held invalid. It will be recalled that 



THE NATIONAL POLICE POWER 317 

Mr. Justice Harlan in the majority opinion in the Adair case" 2 
expressed the view that the provisions of the Erdman Act which 
made it a penal offense for an interstate carrier to discharge an 
employee because of his membership in a labor organization did 
not have a sufficiently close relationship to interstate commerce 
to make it a valid regulation thereof. Various other attempts of 
Congress to regulate commerce have suffered the same fate. 93 
But in considering whether or not the Adamson Act was a bona 
ride regulation of commerce the court paid practically no atten- 
tion to what the law was about. The mind of the court was fixed 
upon what would happen if the law was not passed. It was 
urged upon the court that the law was, in effect, a regulation of 
wages and as such did not fall properly within the scope of the 
commerce power. The court disposed of this objection by de- 
claring that "if it be conceded that the power to enact the statute 
was in effect the exercise of the right to fix wages where, by 
reason of the dispute, there had been a failure to fix by agree- 
ment, it would simply serve to show the nature and character of 
the regulation essential to protect the public right and safeguard 
the movement of interstate commerce, not involving any denial 
of the authority to adopt it." In short, it is difficult to escape 
the conclusion that the Supreme Court regarded the Adamson 
Law as a regulation of interstate commerce, not because it dealt 
with the wages or hours of labor of railroad employees, but 
because its passage was demanded by an organization which was 
in a position to bring about a total cessation of interstate com- 
merce if its demand was not acceded to. If this is true, then 
it would seem to follow that any legislation which forms the sub- 
ject matter of the demands of a body of individuals possessing the 
power to bring interstate commerce to a standstill if those de- 
mands are not granted, must be regarded as a legitimate exercise 
of the power of Congress to regulate commerce, provided such 
legislation does not violate the due process of law clause or any 
other specific constitutional prohibition. This s.tartling doctrine 
without doubt opens up some rather interesting possibilities in 
the way of broadening the scope of the national police power 
under the commerce clause. 

The majority opinion in Wilson v. New is also interesting 



02 Note 25, supra. 
93 Supra, p. 298. 



318 MINNESOTA LAW REVIEW 

because it asserts unequivocally that Congress could, without 
exceeding its constitutional powers, enact a new type of police 
regulation under the commerce clause : namely, a law providing 
for the compulsory arbitration of disputes between interstate 
carriers and their employees. In fact, Chief Justice White took 
the point of view that the Adamson Act was in effect the award 
of a tribunal before which the railroads and the brotherhoods 
had been compelled to arbitrate their differences. Instead of 
creating special machinery for such arbitration, Congress itself 
served as the arbitral tribunal and enacted its award into law. 
"We are of opinion," declared the chief justice, "that . . . 
the act which is before us was clearly within the legislative power 
of Congress to adopt, and that, in substance and effect, it 
amounted to an exercise of its authority under the circumstances 
disclosed to compulsorily arbitrate the dispute between the parties 
by establishing as to the subject matter of that dispute a legisla- 
tive standard of wages operative and binding as a matter of law 
upon the parties, — a power none the less efficaciously exerted 
because exercised by direct legislative act instead of by the en- 
actment of other and appropriate means providing for the bring- 
ing about of such result." While it was unnecessary to the 
decision of the case for the court to state whether or not it would 
regard the general scheme of compulsory arbitration applicable 
to interstate carriers constitutional, the dictum was couched in 
such language and the underlying principle of the whole case is 
such as to leave little room for doubt that the court would regard 
such a system as a legitimate exercise of the power to regulate 
commerce. Congress has enacted several laws aimed to provide 
facilities for the arbitration of labor disputes affecting interstate 
commerce, 94 but it has never made it obligatory upon the parties 
to such disputes to arbitrate ; these laws providing for mediation, 
conciliation, and voluntary arbitration are not, therefore, police 
regulations in the sense in which that term is used in this article, 
since they subject no one to restraint or compulsion. It seems 
clear, however, in light of the utterances of the court in Wilson 
v. New, that the continuance of the voluntary system of arbitra- 
tion is a matter to be settled by legislative discretion alone, and 
that as soon as Congress deems it expedient an effective system of 

94 Act of October 1, 1888. 25 Stat, at L. 501; Act of June 1, 1898, 30 
Stat, at L. 424; Act of July 15, 1913, 38 Stat, at L. 738. 



THE NATIONAL POLICE POWER 319 

compulsory arbitration could be put into force without violating 
any provision of the constitution. 

By way of summary of the ground covered thus far, it is ap- 
parent that no insignificant amount of legislation, social and 
economic in character, legislation which may properly be called 
national police legislation, has been passed by Congress in pur- 
suance of its authority to protect and promote interstate com- 
merce. In order to protect the lives, limbs, and property of those 
who are concerned with interstate commerce as passengers, ship- 
pers, or employees, Congress has enacted a most elaborate series 
of provisions relating to the physical appliances and regulations 
necessary to insure such safety. For the same purpose Congress 
has regulated in various ways the conditions under which the em- 
ployees engaged in interstate commerce shall do their work. And 
the courts have taken a rather generous view of the amount of 
such welfare legislation which may be justified constitutionally 
upon the theory that it promotes the safety, reliability, and effi- 
ciency of interstate commerce. Finally, in order to prevent the 
obstruction of interstate commerce, Congress has been forced to 
deal with the complex problem of monopolies and combinations 
in restraint of trade, has imposed restrictions upon the freedom 
of action of organized labor, and, where collective bargaining has 
broken down, has assumed the role of an arbiter in disputes 
between labor and capital. In short, congressional responsibility 
for the safe, free, uninterrupted flow of commerce between the 
states carries with it the constitutional authority to legislate upon 
a wide range of problems, not commonly regarded as commercial 
in character, which vitally affect the national safety and welfare. 



THE NATIONAL POLICE POWER 381 



THE NATIONAL POLICE POWER 

UNDER THE 

COMMERCE CLAUSE OF THE CONSTITUTION* 

II. Regulations Barring the Use of Interstate Commerce 

As a Conduit for Injurious Commodities and 

An Aid in Illicit Transactions 

. Although Congress in its efforts to protect the national 
health, morals, and general welfare has been compelled to use a 
process of indirection and has had to do good not merely by 
stealth but by subterfuge, the result has been that, under its 
specific grants of power to regulate interstate commerce, to tax, 
and to maintain a postal system, Congress has succeeded in lay- 
ing a compelling or restraining hand upon numerous abuses, has 
wrestled with a considerable variety of economic and social prob- 
lems, and has, accordingly, exercised a police power that has been 
real and substantial. By far the greatest number of those acts 
of Congress, which, even though labeled interstate commerce or 
tax or postal regulations, are really police enactments in disguise, 
have been passed under the authority to regulate commerce : a 
group of these, those passed to protect interstate commerce from 
danger or obstruction, have been discussed in the previous por- 
tion of this article. There remain still to be discussed three 
main groups of police regulations passed under the sanction of 
the commerce clause : those forbidding the use of interstate com- 
merce as a channel for transactions that menace the national 
health, morals, or general welfare; those passed to co-operate 
with the states by forbidding the use of the facilities of inter- 
state commerce for the purpose of evading or violating state 
police regulations ; and finally the Child-Labor Law, by which 
Congress sought to deny the privileges of interstate commerce 
to articles produced under conditions of which Congress did not 
approve. 

* Continued from 3 Minnesota Law Review 319. 



382 MINNESOTA LAW REVIEW 

It has been made clear that Congress has full right under its 
power "to regulate commerce .... among the several 
states" to protect that commerce from danger and obstruction; 
and the Supreme Court has found it possible to uphold the 
Employers' Liability Act as necessary to protect commerce from 
railway accidents, and the Adamson Eight-Hour Law as neces- 
sary to keep commerce from being obstructed. But if Congress 
were limited in its power over interstate commerce merely to the 
protection of that commerce, then a good many abuses and 
dangers arising from or augmented by interstate commerce would 
be left unremedied. But Congress has not felt itself so circum- 
scribed. It has regarded as a proper use of its authority over 
commerce not only the protection of commerce itself but also 
the protection of the public from the misuse of that commerce. 
One of the most interesting and important steps in the develop- 
ment of a national police power under the commerce clause has 
been the enactment of a group of laws by which the channels of 
interstate commerce have been closed to commodities or trans- 
actions which are injurious, not to that commerce or to any of 
the agencies or facilities thereof, but to the health, morals, safety, 
and general welfare of the nation. When Congress punishes 
the man who ships across a state line bottles of colored water 
declared by their labels to be a cure for cancer, it does so not 
because those bottles are a whit more dangerous to commerce 
than would be a consignment of shoes, but because it desires to 
prevent the facilities of commerce from being used as a means of 
distributing goods which are a fraud upon the people who buy 
and use them. When Congress makes it a felony to transport 
a woman from one state to another for immoral purposes, it does 
so not because it is more dangerous or injurious to an interstate 
carrier to carry a prostitute than to carry a clergyman, but 
because it is undesirable to have interstate carriers used as tools 
or agencies by those engaged in the white slave traffic. 

There ought to be no difficulty in concluding that the authority 
to pass such laws is reasonably implied from the plenary power of 
Congress to regulate commerce. When a man is given charge 
of a gun or an axe he is expected not merely to keep it in repair 
and protect it from damage ; he is expected also to see that it is 
not placed at the disposal of those who desire to use it in com- 
mitting murder or in destroying other people's property. What- 
ever controversy may arise as to the power of Congress to pro- 



THE NATIONAL POLICE POWER 383 

hibit or restrict under certain circumstances the shipment in 
interstate commerce of commodities which are legitimate and 
wholesome and are destined for legitimate and wholesome uses, 
there ought to be no serious doubt about the congressional 
authority to keep "the arteries of interstate commerce from 
being employed as conduits for articles hurtful to the public 
health, safety, or morals." 1 

The police regulations thus enacted by Congress to prevent 
the use of commerce for improper purposes may be grouped 
under three heads : first, those designed to protect the public 
morals; second, those aimed to protect the public health: third, 
those intended to protect the public from deception and fraud. 
Each of these groups may be considered briefly. 

1. Acts Under the Commerce Clause Protecting Public 
Morals, (a) Exclusion of Lottery Tickets: It would be difficult 
to point to any problem about which the moral judgment of the 
American people has changed so radically and in so short a time 
as it has in respect to lotteries. During the first few decades 
of our history lotteries were looked upon as perfectly proper 
forms of private enterprise, and even as useful fiscal agencies for 
augmenting the revenue of the state and nation. 2 At the present 
time lotteries are thoroughly and almost universally discredited ; 
and rigorous provisions prohibiting them are to be found on the 
statute books and even in the constitutions of a great majority 
of the states. 3 In 1895 Congress lent its aid to the cause of the 
suppression of lotteries by passing an act which prohibited the 
introduction or the carriage of lottery tickets in the United States 
mails or in interstate commerce. 4 This interesting statute was 
apparently passed with two purposes in view. One purpose was 
the desire to strike a blow indirectly, through the power of Con- 
gress over interstate commerce and the mails, at an evil over 
which the constitution of the United States gave Congress no 
direct authority. A second purpose was to prevent the anti- 

1 This apt phrase is borrowed from the brilliant article by Senator Knox 
on Development of the Federal Power to Regulate Commerce. See 17 Yale 
Law Jour. 135 (1908). 

2 An elaborate account of this is to be found in an article by A. R. Spof- 
ford, Lotteries in American History, Annual Rep. of Amer. Hist. Assoc, 
1892. 

3 An exhaustive analysis of these state provisions and the cases constru- 
ing them is to be found in Horner v. United States, (1893) 147 U. S. 449, 
13 S. C. R. 409, 37 L. Ed. 237. At present probably every American state 
forbids them. 17 R. C. L. 1212. 

4 March 2, 1895, 28 Stat, at L. 963. This now forms Sec. 237 of the 
criminal code of the United States. March 9, 1909, 35 Stat, at L. 1136. 



384 MINNESOTA LAW REVIEW 

lottery statutes of the various states from being rendered inef- 
fective by permitting the introduction of lottery tickets into the 
states through interstate commerce and the mails, channels be- 
yond the reach of the police power of any state legislature. 

It was not until 1903 that the Supreme Court of the United 
States passed upon the constitutionality of the Lottery Act. 5 So 
important and difficult did the court regard the problems involved 
that it had the case argued three times before rendering its final 
decision, and then decided it by a vote of five to four. Some of 
tha most distinguished members of the American bar appeared 
on the brief attacking the statute. Two distinct questions were 
raised in this case : first, are lottery tickets commodities or articles 
of commerce within the meaning of the constitution; second, 
granted that they are, does the power which Congress possesses 
to "regulate" commerce include the power to prohibit commerce 
in such commodities? 

The court answered both these questions in the affirmative. 
It decided, first, that lottery tickets are articles of commerce, 
and, second, that their exclusion from interstate commerce is a 
proper exercise of the power to regulate that commerce. While 
it is unnecessary to the present discussion to comment upon the 
first of these questions, it will be interesting to examine briefly 
the reasons which led the majority of the court to this second 
conclusion. "In the first place," declared the court, speaking 
through Mr. Justice Harlan, "in determining whether regulation 
may not under some circumstances properly take the form or 
have the effect of prohibition, the nature of the interstate traffic 
which it was sought by the act of March 2, 1895, to suppress, 
cannot be overlooked." Then follow the views of the court upon 
the menace of lotteries. Quoting from one of its previous deci- 
sions, 3 it asserted that "Experience has shown that the common 
forms of gambling are comparatively innocuous when placed in 
contrast with the widespread pestilence of lotteries. The former 
are confined to a few persons and places, but the latter infests 
the whole community; it enters every dwelling; it reaches every 
class ; it preys upon the hard earnings of the poor ; it plunders 



5 The Lottery Case (Champion v. Ames), (1903) 188 U. S. 321, 23 
S. C. R. 321, 47 L. Ed. 492. This case involved only the validity of the 
exclusion of lottery tickets from interstate commerce ; their exclusion from 
the mails had been sustained in earlier decisions. See infra pp. 386-387 
and note 7. 

6 Phalen v. Virginia, (1849) 8 How. (U. S.) 163, 168, 12 L. Ed. 1030. 



THE NATIONAL POLICE POWER 385 

the ignorant and simple." The second step in the court's argu- 
ment is that Congress by virtue of its plenary power to regulate 
commerce among the states may "provide that such commerce 
shall not be polluted by the carrying of lottery tickets" unless 
some constitutional restriction can be found to stand in the way. 
"What clause," inquires Mr. Justice Harlan, "can be cited which, 
in any degree, countenances the suggestion that one may, of right, 
carry or cause to be carried from one state to another that which 
will harm the public morals?" The only possible clause of the 
constitution which might be so invoked is that which forbids 
the deprivation of any person's liberty without due process of 
law. "But surely it will not be said to be a part of anyone's 
liberty, as recognized by the supreme law of the land, that he 
shall be allowed to introduce into commerce among the states 
an element that will be confessedly injurious to the public morals. 
. . It is a kind of traffic which no one can be entitled to 
pursue as of right." In the third place, the court disposes of 
the contention that the Lottery Act, by establishing regulations 
of the internal affairs of the several states, violated the Tenth 
Amendment, which reserves to the states or to the people all 
powers not delegated to the United States. The court held, to 
begin with, that this contention overlooks the fact' that the Lottery 
Act is a regulation of commerce and that the power to regulate 
commerce is specifically given to Congress by the constitution. 
But, aside from that, the act does not purport to suppress the 
traffic in lottery tickets which is carried on entirely within the 
limits of a state, but only that traffic which is interstate. Further- 
more, instead of invading the proper field of police regulation 
and usurping the powers of control over the morals of the people 
of the state — 

"Congress only supplemented the action of those states — 
perhaps all of them — which, for the protection of the public 
morals, prohibit the drawing of lotteries, as well as the sale or 
circulation of lottery tickets, within their respective limits. It 
said, in effect, that it would not permit the declared policy of 
the states, which sought to protect their people against the mis- 
chiefs of the lottery business, to be overthrown or disregarded 
by the agency of interstate commerce. We should hesitate long 
before adjudging that an evil of such appalling character, carried 
on through interstate commerce, cannot be met and crushed by 
the only power competent to that end. We say competent to 
that end, because Congress alone has the power to occupy, by 
legislation, the whole field of interstate commerce." 



386 MINNESOTA LAW REVIEW 

After noticing as precedents or analogies some of the other 
instances in which congressional regulations of commerce have 
taken the form of prohibition, — namely, the prohibition of the 
interstate transportation of diseased cattle, the prohibitions com- 
prising the Sherman Anti-Trust Act, and the prohibition resulting 
from the operation of the Wilson Act of 1890, which subjected 
to state police control interstate shipments of liquor upon their 
arrival within the state — the court takes particular pains to make 
clear the limited scope of this important decision. This case 
does not at all establish the right of Congress to "exclude from 
commerce among the states any article, commodity, or thing, 
of whatever kind or nature, or however useful or valuable, 
which it may choose, no matter with what motive. . .■ ." 
The court will consider such arbitrary exclusions from inter- 
state commerce only when it is necessary to do so. "The whole 
subject is too important, and the questions suggested by its. con- 
sideration are too difficult of solution to justify any attempt to 
lay down a rule for determining in advance the validity of every 
statute that may be enacted under the commerce clause. We decide 
nothing more in the present case than that lottery tickets are sub- 
jects of traffic among those who choose to sell or buy them; that 
the carriage of such tickets by independent carriers from one 
state to another is therefore interstate commerce ; that under its 
power to regulate commerce among the several states Congress — 
subject to the limitations imposed by the constitution upon the 
exercise of the powers granted — has plenary authority over such 
commerce, and may prohibit the carriage of such tickets from 
state to state ; and that legislation to that end, and of that char- 
acter, is not inconsistent with any limitation or restriction imposed 
upon the exercise of the powers granted to Congress." 

The Lottery Case was decided by a divided court with four 
justices dissenting. The dissenting opinion, written by Chief 
Justice Fuller, was based on the conviction of the minority that 
lottery tickets were not articles of commerce and that, even if 
they were, the power to regulate interstate' commerce does not 
carry with it the absolute power to prohibit the transportation 
of articles of commerce. It was pointed out that when the court 
held that exclusion of lottery tickets from the mails was a proper 
exercise of the power of Congress over the postal system it had 
been expressly said that Congress did not have the power to ex- 
clude from transportation in interstate commerce articles which 



THE NATIONAL POLICE POWER 387 

it might properly exclude from the mails. 7 This dissent is also 
interesting because it specifically states that Congress does not 
have as extensive power over interstate commerce as it does over 
foreign and Indian commerce. "There is no reservation of police 
power or any other to a foreign nation or to an Indian tribe, 
and the scope of the power is not the same as that over interstate; 
commerce." Consequently the instances in which Congress has 
excluded various articles from importation or from traffic with 
the Indian tribes do not serve as precedents for similar restric- 
tions upon interstate commerce. 8 

The decision in the Lottery Case has been discussed at length 
because it was in a sense a pioneer decision, because it has had a 
profound influence upon the subsequent development of the na- 
tional police power, and because, in spite of Mr. Justice Harlan's 
warning against making unwarranted deductions from it, it has 
been regarded by many as establishing a doctrine regarding the 
power of Congress' to prohibit various kinds of interstate com- 
merce which is far more revolutionary than it was the expressed 
purpose of the court to sanction. It is quite as important to keep 
clearly in mind the things which the Lottery Case does not hold 
as it is to remember the things which it does. In the first place, 
it does not hold that Congress has the same power to exclude 
articles from interstate commerce that it has to exclude them 
from importation in foreign commerce. It already has been sug- 
gested that this view was urged upon the court by counsel for 
the government, but that the decision carefully avoided any 
expression of opinion regarding it. 9 In the second place, it does 
not hold that Congress may exclude anything from interstate 
commerce except those commodities the distribution of which 
menaces the public health, morals, or safety. Finally, it does not 
hold that Congress has the power to exclude harmless and legiti- 
mate commodities or transactions from interstate commerce 
merely because such exclusions would result in a needed or de- 
sirable protection to the public health, safety, or morals. It does 
not, therefore, establish a' precedent for the recently invalidated 
Child-Labor Law. It merely upholds the exclusion of such com- 



7 In re Rapier. (1892) 143 U. S. 110, 12 S. C. R. 374, 36 L. Ed. 93. Ex 
parte Jackson, (1877) 96 U. S. 727, 24 L. Ed. 877. 

8 The Lottery Case is severely criticized in an article by W. A. Suther- 
land, Is Congress a Conservator of the Public Morals? (1904) 38 Amer, 
Law Rev. 194. 

9 See first section of this article, 3 Minnesota Law Review 301. 



388 MINNESOTA LAW REVIEW 

modities as are themselves by their nature and effects a menace 
to the public welfare. 

(b) Exclusion of Obscene Matter: The use of the power of 
Congress to regulate commerce for the purpose of suppressing 
the circulation of obscene literature or pictures dates back to the 
year 1842. 10 However, this early statute merely forbade the im- 
portation of obscene matter into this country from abroad. As 
time went on the scope of this legislation was expanded to include 
within its prohibitions not only obscene literature and prints but 
also contraceptive devices, drugs, and information. 11 But it was 
not until 1897 that Congress finally penalized the distribution of 
such literature and articles through the channels of interstate 
commerce. 12 With some slight modifications, this statute forms 
a part of the present criminal code of the United States. 13 The 
act contains the two fairly distinct types of prohibition already 
in the earlier statutes. In the first place, it makes it a crime to 
deposit with any common carrier for the purpose of interstate 
transportation any obscene literature, pictures, images, or articles. 
In the second place, it excludes from interstate commerce in the 
same way all articles or drugs designed to prevent conception or 
to produce illegal abortions and all literature or advertisements 
containing contraceptive information or telling where the articles 
or information may be secured. 

It is quite clear that the purpose of this legislation was to 
protect the public morals and not to protect interstate commerce. 
Certainly that commerce is in no greater danger of destruction, 
loss, or interference from the transportation of obscene literature 
than it is from the transportation of Bibles. In passing these 
laws Congress aimed to prevent interstate commerce from being 
used as a medium for distributing articles or printed matter which 
it regarded as morally degrading. 

While the Supreme Court of the United States has never 
passed squarely upon the constitutionality of this legislation, it 
has cited with approval the decision of a lower federal court 
which held it valid, 14 so that the constitutional soundness of such 



10 Act of August 30, 1842, 5 Stat, at L. 562, Sec. 28. 

ii Act* of March 2, 1857, 11 Stat, at L. 168; March 3, 1873, 17 Stat, at L. 
598 ; March 3, 1883, 22 Stat, at L. 489 ; October 3, 1913, 38 Stat, at L. 194. 
i 2 Act of February 8, 1897, 29 Stat, at L. 512. 

13 March 4, 1909; 35 Stat, at L. 1138, Sec. 245. 

14 Hoke v. United States, (1913) 227 U. S. 308, 33 S. C. R. 281. 57 L. Ed. 
523. 



THE NATIONAL VOUCH POWER 389 

use of the commerce power may be said to have passed into the 
realm of settled law. That part of the statute which forbids the 
transmission through interstate commerce of contraceptive ar- 
ticles or information was the first to be subjected to judicial 
scrutiny, and its validity was sustained by the United States 
district court in the case of United States v. Popper. 15 The 
statute was attacked primarily upon the ground that Congress 
was without constitutional authority to pass it, since it dealt with 
the internal affairs of the states and invaded, therefore, the field 
of legislative authority reserved to the states by the Tenth Amend- 
ment. The court disposed of the contention with a confident 
directness and brevity of argument that is in striking contrast to 
the labored treatment which the principle involved usually re- 
ceived in other cases. The power to regulate commerce "includes 
power to declare what property or things may be the subjects of 
commerce." The power of Congress to prohibit commerce in j 
certain commodities with the Indian tribes has long been recog- I 
nized. 16 In the License Cases Chief Justice Taney asserted that 
the power of Congress to regulate the commerce with foreign 
nations conferred the authority to "prescribe what articles of 
merchandise shall be admitted and what excluded," and also de- 
clared that the power to regulate interstate commerce was equal 
in scone to the power to regulate foreign commerce. 17 It follows, 
therefore, that under its power over interstate commerce Con- 
gress has the power to prohibit the transportation of articles 
designed for immoral use. 

It is interesting to notice that, while the result reached in the 
Popper case has been regarded as correct, the theory upon which 
the court relied in reaching that result has been tacitly if not 
openly discredited. That theory is that Congress may exclude 
things from interstate commerce because it may exclude them 
from foreign and Indian commerce ; and it has already been made 
clear 18 not only that the Supreme Court in deciding the Lottery 
Case refused to make any use of the argument that the power of 
Congress over foreign and interstate commerce is the same, but 
also that a growing body of legal opinion has been won over to 
the view that the two powers are quite different in scope. No 

is (1899) 98 Fed. 423. 

ic Citing United States v. Hollidav, (1866) 3 Wall. (U. S.) 407, 18 L. Ed. 
182. 

it (1847) 5 How. (U. S.) 577, 12 L. Ed. 256. 
18 Supra, p. 387. 



390 MINNESOTA LAW REVIEW 

other case has been found in which the reasoning of the court in 
this case has been followed. 

That portion of the act of 1897 relating to the exclusion of 
obscene literature from interstate commerce was held constitu- 
tional in a case in the United States circuit court of appeals in 
19 14 19 Th e opinion in this case does not call for extended com- 
ment. The contention that congressional authority does not 
extend to the prohibition of commodities from interstate com- 
merce was met by the citation of the cases in which the Supreme 
Court had upheld the power of Congress to prohibit the inter- 
state transportation of lottery tickets, diseased cattle, and women 
for immoral purposes. The argument that the statute violated 
the First Amendment by abridging the freedom of the press was 
disposed of with the succinct remark that "we think that the free- 
dom of the press has enough to answer for without making it a 
protecting shield for the commission of crime." 

(c) The White Slave Act: In 1910 Congress enacted the 
famous Mann Act, which bore the title, "An Act Further to 
Regulate Interstate and Foreign Commerce by Prohibiting the 
Transportation Therein for Immoral Purposes of Women and 
Girls, and for Other Purposes." 20 Here again Congress was not 
protecting interstate commerce from any dangers, direct or in- 
direct, which menaced that commerce ; the safety and efficiency of 
interstate commerce is not dependent upon the private morality 
of the passengers on interstate trains. The purpose of the statute 
was to strike a blow at the white slave traffic by refusing to allow 
interstate commerce to be used any longer as a means of assisting 
those who promote the nefarious system of commercialized vice. 

The Mann Act was held constitutional by the Supreme Court 
in 1913 in the case of Hoke v. United States. 21 The statute was 
attacked on the ground that it violated the privileges and im- 
munities of citizens of the United States by denying free right 
of passage in interstate commerce ; that it was a perversion of the 
power of Congress to regulate interstate commerce by exceeding 
unduly the proper scope of that power; and on the ground that, 
it contravened the Tenth Amendment by invading the legitimate 
domain of the police power of the state's in an attempt to regulate 
the private morals of the people. 



19 Clark v. United States, (1914) 211 Fed. 916. 

20 June 25, 1910. 36 Stat, at L. 825. 

21 227.U. S. 308, 35 S. C. R. 281, 57 L. Ed. 523. 



THE NATIONAL POLICE POWER 391 

In answer to the first objection, the court denied that any 
person enjoys a constitutionally protected right to use interstate 
commerce for the furtherance of immoral designs. "The con- 
tention confounds things important to he distinguished. It urges 
a right exercised in morality to sustain a right to be exercised in 
immorality. ... It is misleading to say that men and 
women have rights. Their rights cannot fortify or sanction their 
wrongs; and if they employ interstate transportation as a facility 
of their wrongs, it may be forbidden to them to the extent of the 
act of June 25, 1910, and we need go no further. . . ." 
The court also disposed of the other contentions by declaring the 
act to be a proper exercise of the power to regulate commerce. 
This being the case its effect on the normal scope of state police 
power is quite irrelevant. The court alluded in rather sweeping 
terms to the police power which Congress may legitimately exer- 
cise through its control over commerce: 

"The powers reserved to the states and those conferred on 
the nation are adapted to be exercised, whether independently or 
concurrently, to promote the general welfare, material and moral. 
This is the effect of the decisions; and surely if the facility of 
interstate transportation can be taken away from the demoraliza- 
tion of lotteries, the debasement of obscene literature, the con- 
tagion of diseased cattle or persons, the impurity of food and 
drugs, the like facility can be taken away from the systematic 
enticement to and the enslavement in prostitution and debauchery 
of women, and, more insistently, of girls. . . . 

"The principle established by the cases is the simple one, when 
rid of confusing and distracting considerations, that Congress 
has power over 'transportation 'among the several States' ; that 
the power is complete in itself, and that Congress, as an incident 
to it, may adopt not only means necessary but convenient to 
its exercise, and the means may have the quality of police 
regulations." 

While the opinion of Mr. Justice McKenna in the Hoke case 
rests upon the same principle as that upon which the Lottery 
Case was decided, the language used in certain portions above 
quoted is broad enough in its implications to sanction the doctrine 
that the power to regulate interstate commerce may take the 
form of prohibition not merely when such prohibition is neces- 
sary to prevent the distribution of commodities or the consum- 
mation of transactions in themselves definitely injurious to the 
public health, morals, or safety, but it may also take the form of 
prohibition, regardless of the character of the things excluded, 



392 MINNESOTA LAW REVIEW 

when such prohibition will contribute substantially to the national 
welfare. It is not surprising, therefore, to find Mr. Justice 
McKenna one of the four who dissented from the opinion of the 
majority in the case in which the federal Child-Labor Law was 
held invalid ; 22 for his opinion in the Hoke case reflects the view 
that Congress has broad authority to use the power to regulate 
interstate commerce in any manner which will "promote the 
general welfare, material and moral." 

(d) Exclusion of Prize Fight Films: In 1912 Congress en- 
acted a law excluding from foreign and interstate commerce and 
the mails all prize fight films or pictures. 23 This was, of course, 
merely another attempt to keep the postal service and commerce 
from serving as distributing agencies for goods which Congress 
regarded as demoralizing in effect. 

The only portion of this act which has thus far been attacked 
in the courts is that which prohibits the importation of the ob- 
jectionable films from abroad. This was upheld by the United 
States Supreme Court in 1915 in the case of Weber v. Freed. 2 * 
In this case the court contented itself with the briefest possible 
comment on the argument that Congress had exceeded its dele- 
gated powers and had invaded the domain of state police legis- 
lation ; comment which culminated in the statement, "But in 
view of the complete power of Congress over foreign commerce 
and its authority to prohibit the introduction of foreign articles 
recognized and enforced by many previous decisions of this 
court, the contentions are so devoid of merit as to cause them to 
be frivolous." While the court gave no hint of what its attitude 
would be toward the question of the validity of the provision of 
the act forbidding the shipment of prize fight films in interstate 
commerce, the act is so obviously identical in purpose and con- 
stitutional principle with the Lottery Act, the Obscene Literature 
Act, and the White Slave Act, as to leave no doubt whatever 
regarding its constitutionality. 25 

22 Hammer v. Dagenhart, (1918) 247 U. S. 251, 38 S. C. R. 529, 62 L. Ed. 
1101. 

23 Act of July 31, 1912, 37 Stat, at L. 240. 

24 239 U. S. 325, 36 S. C. R. 131, 60 L. Ed. 308. 

25 In two cases involving the validity of this law, Weber v. Freed, (1915) 
224 Fed. 355, United States v. Johnson, (1916) 232 Fed. 970, the lower fed- 
eral courts argued that Congress could exclude the films from foreign com- 
merce because its power to exclude objectionable articles from interstate 
commerce had beenso frequently sustained. Such an argument leaves little 
room for doubt as to the views of these courts on the question of the validity 
of excluding the films from interstate commerce. After the efforts which 
have been made from time to time to prove that the power of Congress to 



THE NATIONAL POLICE POWER 393 

2. Protection to Public Health. Congress has exercised a 
national police power by virtue of its authority to regulate inter- 
state commerce nowhere more frequently and nowhere with 
more general public approval than in the enactment of laws de- 
signed to close the channels of commerce to impure, adulterated, 
or unhealthful products and to the possible breeders and carriers 
of disease. By far the greater portion of the rather voluminous 
legislation of this type which has been placed on the federal 
statute books has provoked neither serious discussion regarding 
its constitutionality nor actual litigation. And while in a few 
instances these laws have been squarely attacked in the courts, 
and decisions sustaining their constitutionality have been ren- 
dered, there have been other cases in which the court has found 
opportunity to give evidence of its approval of such legislation 
only in some collateral action. It is appropriate to the purpose 
of this article to consider only the more interesting and important 
of these laws and the cases construing them, rather than to 
attempt an exhaustive compilation. It seems natural to allow 
them to fall into two general classes : first, the acts excluding 
from interstate commerce impure, unwholesome, or adulterated 
food or drugs ; and, second, the acts to prevent the spread 
through the channels of interstate commerce of disease, infec- 
tion, or parasites. 

(a) Exclusion of Impure, Unwholesome, or Adulterated 
Food or Drugs: The forerunners of the more recent acts exclud- 
ing these objectionable commodities from interstate commerce 
are the laws forbidding the importation of such commodities 
from abroad. This power Congress has exercised since 1848. 
In that year it passed an act "to prevent the importation of 
spurious and adulterated drugs" and to provide a system of 
inspection to make the prohibition effective. 20 Such legislation 
guarding against the importation of unhealth fully adulterated 
food, drugs, or liquor has been on the statute books ever since. 27 
In 1887 the importation by Chinese of smoking opium was pro- 



regulate interstate commerce is as broad as its power over foreign com- 
merce, it is interesting to see the court in the Johnson case arguing the other 
way and urging that "the constitutional power of Congress over commerce 
extends, not only to interstate, but to foreign commerce, and what it may do 
with respect to the one it may do with respect to the other." 

26 Act of June 26, 1848, 9 Stat, at L. 237. 

27 See the following acts : March 1, 1899, 30 Stat, at L. 951 ; Mav 25. 1900, 
31 Stat, at L. 196; March 2, 1901, 31 Stat, at L. 930; June 3, 1902, 32 Stat. 
at L. 296; March 3, 1905, 33 Stat, at L. 874; June 30, 1906, 34 Stat, at L. 684. 



394 MINNESOTA LAW REVIEW 

hibited, 2S and subsequent statutes passed in 1909 29 and 1914 30 
made it unlawful for any one to import it. In 1897 Congress 
forbade the importation of any tea "inferior in purity, quality, 
and fitness for consumption" as compared to a legal standard. 31 
The constitutionality of this provision was attacked in the courts, 
but the act was sustained by the Supreme Court in an opinion 
which has become one of the leading cases establishing the power 
of Congress to prohibit the importation of commodities. 32 
Ultimately Congress began to exclude from interstate com- 
merce also various types of adulterated and unwholesome food 
and drug products. The earlier laws of this kind were not very 
comprehensive. In 1891 an act was passed which provided for 
the inspection of all live cattle destined for slaughter and intended 
for export or for shipment in interstate commerce, and the in- 
spection of such cattle after slaughter, if that was considered 
necessary ; and cattle or carcasses found to be unsound or diseased 
were not allowed to be shipped in interstate or foreign com- 
merce. 33 However, the shipment of cattle or meat which had 
not been inspected at all was not forbidden ; a fact which put 
very obvious limitations upon the scope and effectiveness of the 
act. In 1902 a statute was passed forbidding interstate com- 
merce in all viruses, serums, toxins, antitoxins, and the like, "ap- 
plicable to the prevention of the diseases of man," except when 



28 Act of February 23, 1887, 24 Stat, at L. 409. 

29 Act of February 9, 1909, 35 Stat, at L. 614. 

30 Act of January 17, 1914, 38 Stat, at L. 275. The Supreme Court up- 
held this statute in Brolan v. United States, (1915) 236 U. S. 216, 35 S. C. R. 
285, 59 L. Ed. 541. The court said: "The entire absence of all ground for 
the assertion that there was a want of power in Congress for any reason to 
adopt the provision in question is so conclusively foreclosed by previous 
decisions as to leave no room for doubt as to the wholly unsubstantial and 
frivolous character of the constitutional question based on such contention." 

si Act of March 2, 1897, 29 Stat, at L. 605. 

32 Buttfield v. Stranahan, (1904) 192 U. S. 470, 498, 24 S. C. R. 349, 356, 
48 L. Ed. 525, 536. The conclusiveness with which the court settled the case 
will be apparent from the following excerpt from Mr. Justice White's opin- 
ion : "Whatever difference of opinion, if any, may have existed or does 
exist concerning the limitations of the power [to regulate commerce], 
resulting from other provisions of the Constitution, so far as interstate 
commerce is concerned, it is not to be doubted that from the beginning Con- 
gress has exercised a plenary power in respect to the exclusion of merchan- 
dise brought from foreign countries ; not alone directly by the enactment of 
embargo statutes, but indirectly as a necessary result of provisions contained 
in tariff legislation. It has also, in other than tariff legislation, exerted a 
police power over foreign commerce by provisions which in and of them- 
selves amounted to the assertion of the right to exclude merchandise at 
discretion." 

33 Act of March 3, 1891, 26 Stat, at L. 1089. 



THE NATIONAL POLICE POWER 395 

such commerce is carried on by persons holding licenses from 
the Department of Agriculture, and except when the products 
mentioned conform to standards of purity and effectiveness 
established by the department. 24 A similar law was passed in 
1913, applicable to serums used for domestic animals. 35 How- 
ever, in 1906, Congress approached in earnest the problem of 
stopping the distribution and sale of impure food and drugs in 
so far as its power to regulate interstate commerce gave it 
authority to do so ; and in that year it passed two comprehensive 
and far-reaching statutes known as the Pure Food Act 30 and the 
Meat Inspection Act. 37 

It is unnecessary to discuss in detail the provisions of these 
acts. The Pure Food Act excludes from interstate commerce 
all adulterated and misbranded food and drugs. Its definitions 
of the terms "adulterated" and "misbranded" are broad enough 
to include practically all unwholesome food and drug products 
and those fraudulently compounded or labeled. It seems clear 
that Congress had two purposes in mind in passing the Pure 
Food Act : one was to "protect the health of the people by pre- 
venting the sale of normally wholesome articles to which have 
been added substances poisonous or detrimental to health," the 
other was to "protect purchasers from injurious deceits by the 
sale of inferior for superior articles." 38 Without attempting to 
decide which, if either, of these purposes was paramount in the 
congressional mind, it is entirely proper to regard the act as one 
which aims to protect the health of the nation. 

After the decision in the Lottery Case, it would hardly be 
expected that the question of the constitutionality of the Pure 
Food Act would prove difficult of solution. Several of the lower 
federal courts disposed of the question by reference to the 
authority of that case, 39 and in the two cases in which the validity 
of the act was touched upon by the Supreme Court such validity 
seems to have been assumed rather than established by elaborate 

34 Act of July 1, 1902, 32 Stat, at L. 728. 

35 Act of March 4, 1913, 37 Stat, at L. 832. 
•"6 Act of June 30. 1906, 34 Stat, at L. 768. 
3 " Act of June 30, 1906, 34 Stat, at L. 674. 

38 From the opinion of the court in Hall-Baker Grain Co. v. United 
States. (1912) 198 Fed. 614. 

39 Shawnee Milling Co. v. Temple, (1910) 179 Fed. 517 ; United States v. 
420 Sacks of Flour, (1910) 180 Fed. 518; United States v. Seventy-four 
Cases of Grape Juice, (1910) 181 Fed. 629. For an elaborate discussion of 
the purpose and validity of the Act of 1906, with citation of cases, see Thorn- 
ton. Pure Food and Drugs, (1912) Part II, Ch. II. 



396 MINNESOTA LAW REVIEW 

argument. In the first of these' cases, The Hipolite Egg Co. v. 
United States, 40 the question arose whether the provisions of the 
act authorized the confiscation of adulterated food after it had 
reached its destination and was still in the original package. 
That there was no doubt in the mind of the court as to the 
validity of the law is evidenced by the language used in uphold- 
ing the right of confiscation claimed by the government. The 
court said : "In other words, transportation in interstate com- 
merce is forbidden to them [the adulterated products], and, in 
a sense, they are made culpable as well as their shipper. It is 
clearly the purpose of the statute that they shall not be stealthily 
put into interstate commerce and be stealthily taken out again 
upon arriving at their destination and be given asylum in the 
mass of property of the state." In the case of McDermott v. 
Wisconsin 41 the point at issue was whether the provisions of a 
Wisconsin statute relative to the labeling of food products con- 
flicted with the federal law. While the constitutionality of the 
Pure Food Act was not squarely attacked, the Supreme' Court 
took occasion to express itself clearly upon that point. It said : 

"That Congress has ample power in this connection is no 
longer open to question. That body has the right not only to 
pass laws which shall regulate legitimate commerce among the 
states and with foreign nations, but has full power to keep the 
channels of such commerce free from the transportation of illicit 
or harmful articles, to make such as are injurious to the public 
health outlaws of such commerce and to bar them from the facili- 
ties and privileges thereof. . . . The object of the statute is to 
prevent the misuse, of the facilities of interstate commerce in 
conveying to and placing before the consumer misbranded and 
adulterated articles of medicine or food." 

The Meat Inspection Act, as its name suggests, provides an 
elaborate system of government inspection of meat before and 
after slaughter and during the process of packing, as well as of 
the premises on which these processes are carried on, and for- 
bids the shipment in interstate or foreign commerce of meat or 
meat products not so inspected. While applicable to a somewhat 
different set of conditions, it is quite clear that this statute is 
the same in purpose and rests upon exactly the same constitu- 
tional principles as the Pure Food Act. The validity of the act 
has never been questioned before the United States Supreme 
Court. 

40 (1911) 220 U. S. 45, 30 S. C. R. 364. 55 L. Ed. 364. 
4i (1913) 228 U. S. 115, 33 S. C. R. 431, 57 L. Ed. 754. 



THE NATIONAL POLICE POWER 397 

(b) Exclusion to Prevent the Spread of Disease, Infection, 
or Parasites: Congress has imposed quarantine regulations upon 
foreign and interstate commerce to prevent the spread of human 
disease, diseases of livestock, and diseases and pests which attack- 
plant and tree life. The more interesting and important of these 
acts may he briefly mentioned. 

It is hardly within the scope of this article to allude to the 
numerous statutes whereby Congress has sought to prevent the 
introduction of human disease into this country through the 
channels of foreign commerce. 42 During serious epidemics laws 
have sometimes been passed to prevent the spread of disease 
from state to state by imposing restrictions upon the freedom 
of passage in interstate commerce. Thus in 1800 the President 
was authorized by law to take such measures as might be neces- 
sary to prevent the spread of cholera, yellow fever, smallpox, 
and the plague. 43 

Much more numerous have been the statutes aimed to pre- 
vent the spread of animal diseases through the channels of 
commerce. By the act of 1800 the President was given power 
to suspend entirely for a limited time the importation of any 
class of animals when necessary to protect animals in this country 
from diseases. 44 In 1884 the exportation or shipment in inter- 
state commerce of livestock having any infectious disease was 
forbidden; 45 in 1903 power was conferred upon the Secretary of 
Agriculture to establish such regulations to prevent the spread of 
such diseases through foreign or interstate commerce as he 
might consider necessary ; 46 in 1905 the same official was 
specifically authorized to lav an absolute embargo or quarantine 
upon all shipments of cattle from one state to another when 
the public necessity might demand it. 47 While the Supreme 
Court has held unconstitutional such federal quarantine regu- 
lations of this sort as have been made applicable to intrastate 
shipments of livestock, on the ground that federal authority 



42 For existing regulations see Corap. Stat. 1918, Sees. 9150-9182. See 
article by Edwin Maxey, Federal Quarantine Laws, (1909) 43 Araer. Law 
Rev. 382. 

« Act of March 27, 1890, 26 Stat, at L. 31. 

44 Act of August 30, 1890, 26 Stat, at L. 416. 

45 Act of May 29, 1884, 23 Stat, at L. 31. 

« Act of February 2, 1903, 32 Stat, at L. 791. 
47 Act of March 3, 1905, 33 Stat, at L. 1264. 



398 MINNESOTA LAW REVIEW 

extends only to foreign and interstate commerce, 48 the general 
validity of this type of regulation has been tacitly assumed. 49 

A statute of 1905 forbade the transportation in foreign and 
interstate commerce and the mails of certain varieties of moths, 
plant lice, and other insect pests injurious to plant crops, trees, 
and other vegetation. 50 In 1912 a similar exclusion of diseased 
nursery stock was made effective, 51 while by the same act, and 
again by an act of 1917, 52 the Secretary of Agriculture was 
invested with the same powers of quarantine on interstate com- 
merce for the protection of plant life from disease as those above 
described for the prevention of the spread of animal disease. 
All of this legislation has apparently gone unattacked in the 
courts, but no doubt can possibly exist as to the congressional 
authority to enact it. 

3. Protection of the Public Against Fraud. In concluding 
the treatment of this general type of national police regu- 
lation under the commerce clause, some instances may be 
mentioned in which Congress has excluded commodities from 
commerce in order to protect the public from fraud and decep- 
tion. These statutes are included for the sake of logical 
completeness rather than because they contribute anything new 
to the constitutional principles already discussed. 

•There is probably no question that the act of 1902 excluding 
from commerce food and dairy products falsely branded as to 
the state in which they were made or produced 53 was designed 
to prevent frauds upon the consumer rather than to protect him 
from any menace to his health. Butter made in Ohio does not 
become unwholesome because its label falsely states that it was 
made in Illinois ; but the statute proceeds on the assumption that 
the purchaser has a right to know where it really was made. 

As has already been suggested, when Congress passed the 
Pure Food Act of 1906 54 it desired not only to protect the public 
health but also to protect the public from fraud, by making it 
possible for persons who receive food or drug products through 
foreign or interstate commerce to be reasonably sure of knowing 

48 111. Cent R. Co. v. McKendree, (1906) 203 U. S. 514, 27 S. C. R. 153, 
51 L. Ed. 298. 

49 As in Reid v. Colorado, (1902) 187 U. S. 137, 23 S. C. R. 92, 47 L. Ed. 
108, where the Act of May 29, 1884, supra, was construed and applied. 

50 Act of March 3, 1905, 33 Stat, at L. 1269. 

51 Act of August 20, 1912, 37 Stat, at L. 315. 

52 Act of March 4, 1917. 39 Stat, at L. 1165. 

53 Act of July 1, 1902, 32 Stat, at L. 632. 

54 Supra, note 36. 



THE NATIONAL POLICE POWER 399 

what they were getting. To this end the statute was made to 
include detailed provisions regarding the adequate and honest 
labeling or branding of food or drugs, and adulterations and false 
markings were forbidden even though the products might be 
perfectlv harmless and healthful. The provisions of the act, 
aimed at fraudulent brands and labels, were further strength- 
ened by the enactment in VH2 of an important amendment which 
stipulated that drugs should be held to be "misbranded" if the 
"package or label shall bear or contain any statement, design, or 
device regarding the curative or therapeutic effect of such 
article or any of the ingredients or substances contained therein, 
which is false and fraudulent."'"' An effective blow was thus 
struck at the advertising methods of the purveyors of "quack" 
medicines and nostrums. A still later amendment to the same 
act struck at a different sort of fraud by requiring that the net 
weight of the contents be marked on packages of food or drugs.-' 

Various other statutes have been passed to deny the privi- 
leges of commerce to other kinds of fraudulent products. Among 
these may be mentioned the act excluding from commerce 
"falsely or spuriously stamped articles of merchandise made of 
gold or silver, or their alloys," 57 the act excluding adulterated or 
misbranded insecticides and fungicides, 58 and the recent Grain 
Standards Act"'" excluding all grain unless inspected and found 
to be of standard grade. None of this legislation calls for ex- 
tended comment. 

When one considers the wide scope of the police power 
which Congress has exercised by closing the channels of com- 
merce to commodities and transactions which menace the public 
morals, health, and welfare, it is quite natural to let the highly 
important and salutary purposes which Congress has furthered 
by this legislation obscure the precise — and quite limited — 
methods by which Congress accomplished these ends. From the 
fact that Congress has excluded from commerce articles which 
if distributed and consumed would prove dangerous to the public 
health, it has been an easy step to conclude that Congress might 

55 Act of August 23. 1912, 37 Stat, at L. 416. This amendment was ren- 
dered necessary bv the decision in United States v. Johnson, (1911) 221 
U S 488, 31 S". C". R. 627, 55 L. Ed. 823, which held that the word "mis- 
branded" as used in the Act of 1906 did not apply to false statements as to 
the curative properties of drugs. 

56 Act of March 3, 1913. 37 Stat, at L. 732. 
■'- Act of June 13. 1906. 34 Stat, at L. 260. 

58 Act of April 26. 1910. 36 Stat, at L. 331. 

59 Actof August 11, 1916, 39 Stat, at L. 482. 



400 MINNESOTA LAW REVIEW 

exclude from commerce anything, regardless of its character or 
intended use, if by using such exclusion as a club or penalty 
there might result a still more adequate protection of the public 
health. Whether or not it is logically possible to infer the 
existence of this broader national police power from the cases 
which have thus far been discussed — and this has proved to be 
a highly controversial question — there is small reason to believe 
that the courts by which those cases were decided expected or 
desired any such inferences to be drawn from them. All that it 
is necessary to infer from the statutes and decisions thus far 
reviewed is that under its power to regulate interstate commerce 
Congress may properly be charged with the responsibility of 
seeing that the commerce so committed to its care is not used as 
a "conduit" for the distribution of injurious products or as a 
facility for the consummation of injurious transactions. 

III. Regulations Barring the Use of Interstate Commerce 

. For the Evasion or Violation of State 

Police Regulations 

It will be noted that in the statutes discussed in the above 
section the articles or transactions which were barred out of 
interstate commerce were those which Congress itself regarded 
as injurious to the public welfare. A problem which has pre- 
sented far greater difficulties both for Congress and the courts 
has been the problem of how to deal with the interstate trans- 
portation of commodities, such as intoxicating liquors, which 
Congress, instead of excluding from interstate commerce, has 
recognized as legitimate articles of that commerce, 60 but which 
have, at the same time, been regarded by some of the states as 
so harmful as to warrant the complete prohibition of their pro- 
duction, sale, and even possession. The problem has taken the 
form of a dilemma. To allow the individual states at their 
discretion to exclude from their borders legitimate articles of 
commerce, or to allow them to decide for themselves what 
articles of commerce are legitimate and to exclude the others, 



60 "By a long line of decisions, beginning even prior to Leisy v. Hardin, 
(1890) 135 U. S. 100, it has been indisputably determined that beer and 
other intoxicating liquors are a recognized and legitimate subject of inter- 
state commerce," Louisville & Nashville R. Co. v. Cook Brewing Co., (1912) 
223 U. S. 70, 32 S. C. R. 189, 56 L. Ed. 355. See the exhaustive citation of 
cases in 12 Corpus Juris 20. 



THE NATIONAL POLICE POWER 401 

would seem to be a reversion to the non-uniform, obstructive, 
and wholly unsatisfactory system of commercial regulation by 
the states which it was one of Ihe primary purposes of the 
framers of the federal constitution to abolish forever. On the 
other hand, to pour intoxicating liquor through the channels of 
interstate commerce into a state which is struggling with the 
already difficult problem of making its prohibition laws effective 
seems to be very bad policy if not also bad law. It has taxed 
to the utmost the ingenuity of Congress and, it may be said, of 
the courts as well, to steer a middle course between the horns 
of this dilemma ; to avoid forcing liquor down the throats of 
states which do not want it, without sacrificing the vital principle 
of uniformity in the regulation of interstate transportation of 
commodities. The steps in the development of this problem and 
the various efforts which Congress has made to solve it may 
properly claim some attention, inasmuch as these efforts may be 
regarded as exercises of a national police power under the com- 
merce clause. 

1. The Original Package Doctrine. 61 That goods imported 
from foreign countries do not become subject to the jurisdiction 
of the individual states so long as they remain in the original 
packages in which they were shipped and have not been merged 
in the general mass of the property of the state was settled in 
1827.P 2 But when twenty years later the question was presented 
to the Supreme Court in the License Cases 63 whether a state 
could prohibit or restrain by the requirement of a license the sale 
in the original packages of liquor brought in from other states 
or from abroad the court answered that it could. There was no 
act of Congress with which the state statutes in question could 
be said to conflict, and such regulation of interstate shipments 
of liquor could be held invalid only on the theory that the 
grant of power to Congress to regulate interstate commerce was 
exclusive and precluded any state regulation on the same subject 
even though Congress had not yet exercised its power over it. 
The leading opinion, which was written by Chief Justice Taney, 
definitely rejected this theory. 



61 This problem is treated in detail in the first of a valuable series of 
articles by Lindsav Rogers on Interstate Commerce in Intoxicating Liquors 
Before the Webb-Kenyon Act, (1916) 4 Va. Law Rev. 174. 

62 Brown v. Maryland, (1827) 12 Wheat. (U. S.) 419, 6 L. Ed. 678. 

63 (1847) 5 How. (U. S.) 504, 12 L. Ed. 256. 



402 MINNESOTA LAW REVIEW 

"The mere grant of power to the general government [declared 
the chief justice] cannot, upon any just principles of construc- 
tion, be construed to be an absolute prohibition to the exercise 
of any power over the same subject by the states. The con- 
trolling and supreme power over commerce with foreign nations 
and the several states is undoubtedly conferred upon Congress. 
Yet, in my judgment, the state may, nevertheless, for the safety 
or convenience of trade, or for the protection of the health of 
its citizens, make regulations of commerce for its own ports and 
harbours, and for its own territory ; and such regulations are 
valid unless they come in conflict with a law of Congress." 

The decision in the License Cases reflects not only the "state's 
rights" constitutional principles of the Supreme Court as then 
constituted but the very obvious concern of the court at the pros- 
pect that the prohibition laws which a number of states were 
beginning to enact should be rendered ineffective by a use of 
interstate commerce which those states were powerless to 
prevent. 64 

With the abatement of temperance zeal which followed the 
Civil War, it was more than twenty years before another grist 
of state laws purporting to restrain or prohibit the bringing of 
liquor into the state through the channels of interstate commerce 
claimed the attention of the Supreme Court. In 1888, however, 
the court threw consternation into the ranks of the prohibitionists 
by invalidating an Iowa statute which punished any railroad 
company for knowingly bringing into the state for any other 
person any intoxicating liquors without a certificate that the 
consignee was authorized to sell them. This was the case of 
Bowman v. Chicago and Northwestern Ry. Co. 05 It held that 
the statute was an attempt to exercise "jurisdiction over persons 
and property within the limits of other states" and, furthermore, 
"If not in contravention of any positive legislation by Congress, 
it is nevertheless a breach and interruption of that liberty of 
trade which Congress ordains as the national policy, by willing 
that it shall be free from restrictive regulations." The court did 
not cross any unnecessary bridges in the Bowman case, but 
merely held that even in the absense of conflicting federal legis- 
lation a state could not make it a crime to import an article of 
commerce within its borders. 

64 An account of this ante-bellum prohibition movement is given in the 
Encyclopedia Britannica under Liquor Laws, Vol. XVI, p. 767. See also 
A. A. Bruce, The Wilson Act and the Constitution, (1909) 21 Green Bag 
211. 

65 (1888) 125 U. S. 465, 8 S. C. R. 689, 1062, 31 L. Ed. 700. 



THE NATIONAL POUCH POWER 403 

While the friends of prohibition in Congress were still 
endeavoring to enact some sort of statute which would patch up 
the havoc wrought by the Bowman case,' 1 " a still greater calamity 
befell them in the decision of the Supreme Court early in 1890 
in the case of Leisy v. Hardin. 01 This case, popularly known as 
the Original Package Case, overruled the decision in the License 
Cases™ and held in substance that, even in the absence of con- 
gressional regulation of the subject, the police power of the state 
could not be exercised to prohibit the bringing of articles of com- 
merce into the state and the selling of those articles in the 
original packages. An article of interstate commerce does not 
cease to be such until it has either been taken out of the original 
package or sold in that package; and until it ceases to be an 
article of interstate commerce it is beyond the reach of the state 
police power. 

"Whatever our individual views may lie as to the deleterious 
or dangerous qualities of particular articles [said the court] we 
cannot hold that any articles which. Congress recognizes as sub- 
jects of interstate commerce are not such, or that whatever are 
thus recognized can be controlled by state laws amounting to 
regulations, while they retain that character. . . -. To con- 
cede to a state the power to exclude, directly or indirectly, 
articles so situated, without congressional permission, is to con- 
cede to a majority of the people of a state, represented in the 
state legislature, the power to regulate commercial intercourse 
between the states, by determining what shall be its subjects, 
when that power was distinctly granted to be exercised by the 
people of the United States, represented in Congress, and its 
possession by the latter was considered essential to that more 
perfect Union which the Constitution was adopted to create." 

Now it is perfectly clear that if a state cannot forbid the 
shipping in of intoxicating liquors from other states and cannot 
forbid the sale of those liquors in their original packages after 
they have been shipped in, then state prohibition becomes more 
or less of a farce. But close scrutiny of the opinion of Chief 
Justice Fuller in Leisy v. Hardin indicated to the friends of pro- 
hibition that there might still be a method of bettering this unfor- 
tunate plight of the prohibition states. Although it was unneces- 
sary to the decision of the case, the Chief Justice had definitely 



fiC These efforts are described by Lindsay Rogers, op. cit., second article, 
4 Va. Law Rev. 294. 

67 (1890) 135 U. S. 100, 10 S. C. R. 681, 34 L. Ed. 128. 
08 Supra, note 63. 



404 MINNESOTA LAW REVIEW 

suggested at several points in his opinion that this incapacity of 
the states to protect themselves against interstate shipments of 
liquor was due to the fact that Congress had not given the states 
permission to exert any authority over such shipments. 69 The 
inference from these dicta was perfectly plain : i. e., Congress 
might pass an act bestowing upon the states the power to pass 
the police regulations applicable to interstate consignments of 
liquor, which, in the absence of such permission, the court had 
held them powerless to enact. Congress, under pressure from 
the temperance forces, proceeded to give the states the desired 
permission, and the Wilson Act 70 became law within a year after 
the decision in Leisy v. Hardin. 

2. Congressional Permission to States to Protect Themselves 
from Certain Types of Interstate Commerce. The Wilson Act 
provided that "intoxicating liquors .... transported into 
any State or Territory or remaining therein .... shall 
upon arrival .... be subject to the operation .... 
of the laws of such State or Territory enacted in the exercise of 
its police power .... in the same manner as though . . 
. . produced in such State or Territory, and shall not be exempt 
therefrom by reason of being introduced therein in original pack- 
ages or otherwise." The Supreme Court promptly sustained the 
constitutionality of the act in the case of In re Rahrer. 71 It is 
impossible to enter upon an extended discussion of the highly 



69 135 U. S. at page 109 : "Hence, inasmuch as interstate commerce, con- 
sisting in the transportation, purchase, sale and exchange of commodities, is 
national in its character, and must be governed by a uniform system, so long 
as Congress does not pass any law to regulate it, or allowing the states so to 
do, it thereby indicates its will that such commerce shall be free and un- 
trammelled." 

At page 110: "If the importation cannot be prohibited without the con- 
sent of Congress, when does property imported from abroad, or from a 
sister state, so become part of the common mass of property within a state 
as to be subject to its unimpeded control?" 

At page 114: "It cannot, without the consent of Congress, express or 
implied, regulate commerce between its people and those of the other States 
of the Union in order to effect its end, however desirable such a regulation 
might be." 

At page 119: "... . the states cannot exercise that power [to regulate 
commerce among the states] without the assent of Congress " 

At page 123 :".... the responsibility is upon Congress, so far as the 
regulation of interstate commerce is concerned, to remove the restriction 
upon the State in dealing with imported articles of trade within its limits, 
which have not been mingled with the common mass of property therein, if 
in its judgment the end to be secured justifies and requires such action." 

The italics are the author's. 

70 Act of August 8, 1890, 26 Stat, at L. 313. 

71 (1891) 140 U. S. 545, 11 S. C. R. 865, 35 L. Ed. 572. 



THE NATIONAL POUCH POWER 405 

controversial questions which came up in this case. 7 - The statute 
was attacked primarily on the grounds, first, that in passing it 
Congress had delegated to the states a portion of its authority 
over interstate commerce ; and second, that it established a regu- 
lation of that commerce which was non-uniform in character. 
The court denied that the states had been given by the act any 
power to regulate interstate commerce. "Congress did not use 
terms of permission to the state to act, but simply removed an 
impediment to the enforcement of the state laws in respect to 
imported packages in their original condition, created by the 
absence of a specific utterance on its part," and it is entirely 
proper for Congress to "provide that certain designated subjects 
of interstate commerce shall be governed by a rule which divests 
them of that character at an earlier period of time than would 
otherwise be the case." The court also denied that the act estab- 
lished a non-uniform regulation of commerce. Congress has 
"taken its own course and made its own regulation, applying to 
these subjects of interstate commerce one common rule, whose 
uniformity is not affected by variations in state laws in dealing 
with such property." 

There is every reason to suppose that Congress in passing 
the Wilson Act believed that it was giving the states adequate 
authority to protect themselves from interstate shipments of 
liquor. It was not until the case of Rhodes v. Iowa 13 was decided 
in 1898 that it became clear that the enactment of that statute 
and the decision of the Supreme Court sustaining its validity 
were but empty victories for the prohibition cause. In that case 
the Supreme Court decided that when the Wilson Act provides 
that intoxicating liquors brought into a state shall be subject 
to the state police power "upon arrival," the word "arrival" 
means, not arrival at the state line, but arrival in the hands of 
the one to whom they were consigned ; and until such arrival 
they are exempt from state control or interference. 74 Under 'this 

72 See the second article by Lindsay Rogers, op. cit, 4 Va. Law Rev. 288 ; 
also A. A. Bruce, op. cit., note 64. The article by Judge Bruce is a vigorous 
criticism of the Rahrer case. 

73 (1898) 170 U. S. 412, 18 S. C. R. 664, 42 L. Ed. 1088. This case re- 
versed the decision of the Iowa supreme court in State v. Rhodes, (1894) 
90 Iowa 496, 58 N. W. 887, 24 L R. A. 245, which held that under the Wilson 
Act shipments of liquor from other states became subject to the police 
power of the state as soon as they crossed the boundary line of the state. 

74 The decision in Rhodes v. Towa had been foreshadowed bv the case 
of Scott v. Donald (1897) 165 U. S. 58, 17 S. C. R. 265, 41 L Ed 632— see 
also Vance v. Vandercook Co., ( 1898) 170 U. S. 438, 18 S. C. R. 674, 42 L. Ed. 
1100, — which held that the South Carolina dispensary system could not ex- 



406 MINNESOTA LAW REVIEW 

construction it is apparent that the Wilson Act, instead of giving 
the states the virtual right to prohibit the importation of liquor 
by allowing them to confiscate it as soon as it reached the state 
line, merely gave them the right to forbid the disposition or sale 
of the liquor after the interstate carrier had actually delivered 
it to the consignee. By such a limitation on the scope of the 
prohibitive laws of the state so many opportunities for the evasion 
of those laws were opened up as to render the Wilson Act a very 
inconsequential gain to the temperance cause. 

It may be noted in passing that in 1902 a statute practically 
identical in its terms with the Wilson Act was passed subjecting 
to the police legislation of the states, upon their arrival therein, 
interstate shipments of oleomargarine and other imitations of 
butter. 75 This statute has never attracted much attention and it 
presents no new constitutional problem. 

3. Making Articles Shipped in Interstate Commerce zvith 
Intention to Violate State Laws Outlaws of That Commerce. 
(a) The Webb-Kenyon Act: No sooner had the Wilson Act 
been emasculated by the decision in Rhodes v. Iowa than agita- 
tion was begun in Congress for legislation which would actually 
give the prohibition states the protection against interstate ship- 
ments of liquor which that measure had been vainly supposed to 
provide. The problem, however, was growing increasingly diffi- 
cult. Grave doubts were raised regarding the constitutionality 
of the various proposals for such legislation, but after consider- 
able use of the trial and error method the Webb-Kenyon Bill was 
passed by Congress in 1913. 76 It was vetoed by President Taft 
on the advice of Attorney-General Wickersham, on the ground 
that it was unconstitutional; 77 but it was promptly passed over 
his veto. The title of the statute described it as "An Act Divest- 
ing Intoxicating Liquors of Their Interstate Character in Certain 
Cases," and it proceeded to do this by prohibiting (without attach- 
ing any penalty) the shipment in interstate commerce of intoxi- 
cating liquors "intended, by any persons interested therein, to be 
received, possessed, sold, or in any manner used" in violation of 

tend its monopolistic control of the liquor traffic in that state to the total ex- 
clusion of liquor from other states. See the third article by Lindsay Rogers, 
op. cit, 4 Va. Law Rev. 355, dealing with The Narrowing of the Wilson Act. 

75 Act of May 9, 1902, 32 Stat, at L. 193. The steps leading up to the 
passage of this act are set forth in the second article by Lindsay Rogers, 
op. cit., 4 Va. Law Rev. 288. 

76 Act of March 1, 1913, 37 Stat, at L. 699. 

77 The veto message and the opinion of the attorney-general are found 
in Sen. Doc. 103, 63rd Congress, 1st Session. 



THE NATIONAL POUCH POWER 407 

the law of the state of their destination. Hitherto the states 
had been unable to exclude shipments of liquor from other states 
because such action amounted to an unconstitutional prohibition 
of interstate commerce ; under the Webb-Kenyon Act the exclu- 
sion of such liquors was made lawful by outlawing those ship- 
ments from interstate commerce and thereby depriving them of 
that federal protection from state regulation which articles oi 
interstate commerce enjoy. 

The Webb-Kenyon Act was held constitutional by the 
Supreme Court in 1 ( >17 in the case of Clark Distilling Co. v. 
Western Maryland Ry. Co.'* The court pointed out that under 
the doctrine of the Lottery Case ro and Hoke v. United States 80 
no doubt remained as to the power of Congress to exclude intoxi- 
cating liquor from interstate commerce altogether. The objection 
"raised to the act was not, therefore, "an absence of authority 
to accomplish in substance a more extended result than that 
brought about by the Webb-Kenyon Law, but .... a want 
of power to reach the result accomplished because of the method 
resorted to. 7 ' This method was not unconstitutional on the 
ground that it delegated power to the state to prohibit interstate 
commerce in intoxicating liquors (the argument on which Presi- 
dent Taft's veto was based) and thereby permitted the non- 
uniform regulation of such commerce; the court declared that the 
argument as to the delegation of power to the states rested upon 
a misconception: ". . . the will which causes the pro- 
hibitions to be applicable is that of Congress, since the application 
of state prohibitions would cease the instant the act of Congress 
ceased to apply." In regard to the alleged non-uniformity of 
commercial regulation the court declared: . . • . there 

is no question that the act uniformly applies to the conditions 
which call its provisions into play— that its provisions apply to 
all the states — so that the question really is a complaint as to 
the want of uniform existence of things to which the act applies, 
and not to an absence of uniformity in the act itself." Having 
disposed of these objections the court could "see no reason for 
saying that although Congress, in view of the nature and char- 
acter of intoxicants had power to forbid their movement in inter- 
state commerce, it had not the authority so to deal with the 
subject as to establish a regulation (which is what was done by 

-s (1917) 242 U. S. 311, 2,7 S. C. R. 180, 61 L. Ed. 326. 
"'•' Supra, p. 386. 
80 Supra, p. 390. 



408 MINNESOTA LAW REVIEW 

the Webb-Kenyon Law) making- it impossible for one state to 
violate the prohibitions of the laws of another through the chan- 
nels of interstate commerce." 81 

(b) The Lacey Act: In 1900 Congress passed a statute mak- 
ing it unlawful to ship from one state or territory to another state 
or territory any animals or birds killed in violation of the laws 
of the state. 82 It is quite clear that Congress was here using its 
power over interstate commerce for the purpose of co-operating 
with the states in the protection of wild game and birds. In fact, 
the first section of the statute declared frankly that its purpose 
was to "aid in the restoration of such birds in those parts of 
the United States adapted thereto where the same have become 
scarce or extinct." It should be noticed that this act differs in 
theory from the Webb-Kenyon Act, because the articles which 
are here outlawed from interstate commerce are not articles 
which when distributed through that commerce will menace the 
public welfare. They are outlawed because of their illegal origin 
and possession and because Congress desires to prevent inter- 
state commerce from being used as an outlet or place of refuge 
for such illegal commodities. By passing the Webb-Kenyon Act 
Congress refused to allow itself to become an accessory before the 
fact, by declining to place the facilities of interstate commerce 
at the disposal of those who are about to violate the prohibition 
laws of the states ; by passing the Lacey Act Congress refused 
to become an accessory after the fact, by declining to place those 
facilities at the disposal of those who have just violated the state 
law by affording them a means of disposing of their unlawful 
possessions. This difference, however, should have no bearing 
upon the question of congressional power to pass the Lacey Act, 
and the only court which has passed upon its validity has held it 
constitutional on the authority of the Rahrer case upholding the 
Wilson Act. 83 



81 The Webb-Kenyon Act and the Clark Distilling Co. case have been 
widely discussed in the legal periodical literature. The following articles 
may be mentioned here : D. O. McGovney, The Webb-Kenyon Law and 
Beyond, 3 Iowa Law Bui. 145 ; S. P. Orth, The Webb-Kenyon Law Deci- 
sion, 2 Corn. Law Quar. 283 ; T. R. Powell, The Validity of State Legisla- 
tion Under the Webb-Kenyon Law, 2 So. Law Quar. 112; Lindsay Rogers, 
The Webb-Kenyon Decision, 4 Va. Law Rev. 558. Other articles are cited 
in the notes to Decisions of the Supreme Court of the United States on 
Constitutional Questions, T R. Powell, 12 Amer. Polit. Science Rev. 19 
et seq. 

S2 Act of May 25, 1900, 31 Stat, at L. 188. 

83 Rupert v. United States, (1910) 181 Fed. 87. 



THE NATIONAL POLICE POWER 409 

4. The Reed "Bone-Dry" Amendment. The introduction for 
discussion at this point of the Reed Amendment by its popular 
title rather than hy a caption indicating' the principle on which 
it is based is a confession by the author of his inability to discover 
what that principle is, if there be any. This act was passed as 
an amendment to the Postoffice Appropriation Act of 1917. 84 
The pertinent provision reads as follows : "Whoever shall order, 
purchase, or cause intoxicating" liquors to be transported in inter- 
state commerce, except for scientific, sacramental, medicinal, and 
mechanical purposes, into any state or territory the laws of which 
state or territory prohibit the manufacture or sale therein of 
intoxicating" liquors for beverage purposes shall be punished as 
aforesaid." 85 

A casual reading of this statute might lead one to assume 
that Congress had merely supplemented the Webb-Kenyon Act 
by punishing those who make interstate shipments of liquor 
which, in order to divest them of their interstate character, that 
act had prohibited without attaching a penalty. What the Reed 
Amendment really does is to impose, under penalty of the federal 
law, a "bone-dry" policy in the matter of shipments of liquor 
from other states upon any state which prohibits merely the 
manufacture and sale of intoxicants for beverage purposes. In 
other words, the amendment forbids the shipment of liquor even 
for personal use into a state which may permit the personal use 
of liquor but forbids its manufacture and sale. 

The Supreme Court recently upheld the validity of the Reed 
Amendment in the case of United States v. Hill} 6 It was urged 



S4 Act of March 3, 1917, 39 Stat, at L. 1069. The same act also pro- 
hibited sending liquor advertisements through the mails into states which 
forbade such advertising. See J. K. Graves, The Reed "Bone Dry"' Amend- 
ment, 4 Va. Law Rev. 634. 

85 Italics are the author's. 

86 (1919) 248 U. S. 420, 39 S. C. R. 143. In McAdams v. Wells Fargo & 
Co. Express, (1918) 249 Fed. 175, the law was enforced against the carrier 
and the court said : "It is quite evident that Congress, in adopting said act, 

intended to aid the states in the enforcement of their prohibition laws 

It may be that Congress builded better than it knew in passing the Act of 
March 3, 1917 ; but there is no doubt that it prohibits the shipment of liquor 
in interstate commerce for beverage purposes into the dry parts of the state 
of Texas wherein the sale of liquor is prohibited by the state law. though 
intended only for personal use." In United States v. Mitchell, (1917) 245 
Fed. 601, the court, while not declaring the Reed Amendment unconstitu- 
tional, held that the transportation of liquor for personal use in one's own 
baggage is not "commerce" and does not therefore fall within the prohibi- 
tions of the act. The view is, of course, in conflict with the decision of the 
Supreme Court in the Hill case. 



410 MINNESOTA LAW REVIEW 

upon the court, and the lower court so held, that the prohibition 
of the act should be construed to apply only to such shipments of 
liquor as were in violation of the law of the state into which they 
went. But the Supreme Court refused to narrow the meaning of 
the act in this way. The illegality of the forbidden shipments 
of liquor does not depend upon the law of the state, as it does 
in the case of the Webb-Kenyon Act, but upon the law of Con- 
gress. While Congress may exercise its authority over interstate 
commerce "in aid of the policy of the state, if it wishes to do so, 
it is equally clear that the policy of Congress acting independently 
of the states may induce legislation without reference to the 
particular policy or law of any given state." It is well estab- 
lished that in certain cases congressional regulation of commerce 
mav take the form of prohibition, and this' is an appropriate case 
for the exercise of that power. "That the state saw fit to permit 
the introduction of liquor for personal use in limited quantity in 
no wise interferes with the authority of Congress, acting under 
its plenary power over interstate commerce, to make the prohibi- 
tion against interstate shipment contained in this act. It may 
exert its authority, as in the Wilson and Webb-Kenyon Acts, 
having in view the laws of the state, but it has a power of its 
own, which in this instance it has exerted in accordance with its 
view of public policy." 

A brief but vigorous dissenting ■opinion was written by Mr. 
Justice McReynolds. He expressed his conviction that the Reed 
Amendment "in no proper sense regulates interstate commerce, 
but it is direct intermeddling with the states' internal affairs. 
. . . . to hold otherwise opens possibilities for partial and 
sectional legislation which may destroy proper control of their 
own affairs by the separate states .... If Congress may 
deny liquor to those who live in a state simply because its manu- 
facture is not permitted there, why may not this be done for any 
suggested reason — e. g., because the roads are bad or men are 
hanged for murder or coals are dug? Where is the limit? . . 
. . The Reed Amendment as now construed is a congressional 
fiat imposing more complete prohibition wherever the state has 
assumed to prevent manufacture and sale of intoxicants." 

There is nothing in the majority opinion in the Hill case to 
throw any light upon Mr. Justice McReynolds' question, "Where 
is the limit ?" The law classifies the states and prohibits the ship- 
ment of liquor for beverage purposes into the states comprising 



THE NATIONAL POUCH POWER 411 

one of the classes. But there is nothing to indicate that the court 
regarded the constitutionality of the law as in any way contingent 
upon the intrinsic reasonableness of that classification. Emphasis 
is laid upon the fact that Congress could exclude all liquor from 
interstate commerce, and the suggestion that the Reed Amend- 
ment depends for its prohibitive force upon the existence of any 
particular type of state law relating to liquor is repudiated. The 
court does suggest that Congress apparently thought it would 
be a good thing to impose the "bone-dry" rule upon all states 
having more moderate prohibition laws, hut this is far from 
saying that the statute would not have been an equally legitimate 
exercise of the commerce power if the purpose of Congress had 
been something quite remote from the suppression of the liquor 
traffic. If Congress has full power to stop all interstate traffic 
in liquor, but is under no constitutional obligation to prohibit 
the shipment of liquor into all states merely because it prohibits 
such shipments into some, being free to make the application of 
that prohibition depend upon the existence or non-existence of 
certain conditions in the states, then may not Congress by turn- 
ing the interstate spigot on or off, as the needs of the case may 
demand, exert a pressure on the states which will lead them to 
comply with the congressional wishes in matters over which 
Congress has no direct authority? It is not impossible that Con- 
gress has stumbled inadvertently into an unexplored field of 
police regulation, although there is small probability that such an 
indirect method of exerting police power would ever prove par- 
ticularly alluring. 

Whatever may be the constitutional implications of the Reed 
Amendment and the case upholding it, it is impossible to classify 
it with any of the types of national police regulation which have 
been thus far discussed. It is not an exclusion from interstate 
commerce o,f a commodity which Congress regards as injurious 
to the national health or morals, because Congress does not 
exclude all liquor from such commerce, but only that destined for 
certain states. Nor is it an act designed to co-operate with the 
states in the adequate enforcement of their police regulations 
relating to the liquor traffic, because it overrides the wishes of 
many of those states and imposes on them a more rigorous prohi- 
bition than they desire. It embodies neither the principle of 
positive national control over the interstate shipments of liquor 
nor the principle of local option or state home rule embodied 



412 MINNESOTA LAW REVIEW 

in the Wilson and Webb-Kenyon Acts. It proceeds upon the 
somewhat curious theory that Congress ought to impose its own 
brand of prohibition not upon all the states but only upon those 
states which have seen fit to adopt another sort of prohibition. 

From the ground thus far covered it is apparent that the 
police power which Congress may exercise in protecting and 
promoting interstate commerce, substantial as that power has 
been shown to be, has been overshadowed by the police power 
resulting from the efforts of Congress to keep that commerce 
from being used to distribute objectionable commodities or to 
promote objectionable transactions. The goods or transactions 
which may thus be excluded from interstate commerce may be 
objectionable either because they are dangerous to the public 
morals, health, or welfare, or because they are to be used in 
violation of the legitimate police regulations of the state. The 
question which remains for consideration is whether or not a 
still more extensive national police power may properly be derived 
from the commerce clause by allowing Congress to deny the 
privileges of interstate commerce to commodities which are harm- 
less in their nature and the use to which they are to be put, but 
which are produced under conditions which Congress deems 
objectionable. This problem will be dealt with in the concluding 
section of this article. 



452 MINNESOTA LAW REVIEW 

THE NATIONAL POLICE POWER 

UNDER THE 

COMMERCE CLAUSE OF THE CONSTITUTION* 

IV. Regulations Denying the Privileges of Interstate 

Commerce to Harmless Goods Produced under 

Objectionable Conditions — The Federal 

Child Labor Law 

In passing the Keating-Owen Child Labor Law 1 Congress 
plunged, probably with some misgivings, into what was expected 
to prove a new field of national police regulation. The act for- 
bade the shipment in interstate commerce of the products of 
mines and factories in which, within thirty days prior to their 
shipment in such commerce, child labor had been employed. It 
was an entirely novel exercise of the power to regulate com- 
merce. Even those who deny that the unique character of the 
act created any serious constitutional difficulty readily agree that 
it stands in a class by itself as an exercise of congressional 
authority. Hitherto Congress had exercised a national police 
power under the commerce clause in two general ways : fijsi, to 
protect interstate commerce from injury and obstruction; second, 
by refusing to allow it to be used to further the distribution of 
obnoxious commodities or the consummation of injurious de- 
signs. Wherever Congress had resorted to prohibitions of inter- 
state commerce the prohibition had been justified upon the harm- 
ful nature of the thing excluded; harmful either to commerce 
itself or harmful in the use to which it was put. The goods 
excluded by the Child Labor Law, however, were themselves 
entirely harmless and legitimate in character, and harmless and 
legitimate also in the use to which they were to be put; their 
harmfulness consisted in the fact that they were produced under 
conditions injurious to the public welfare. Like an illegitimate 
child, they were made to bear the taint of the evil which brought 
them into existence; the disability which attached to them was 
created not because Congress in any way objected to having 
that kind of goods distributed through interstate commerce but 

*Continued from 3 Minnesota Law Review 412. 

1 Act of September 1, 1916, 39 Stat, at L. 675, Chap. 432. 



THE NATIONAL POLICE POWER 453 

because it wished to make it unprofitable to employ children in 
the manufacture of any kind of goods. The doctrine of the 
Child Labor Law would have extended enormously the scope 
of the national police power under the commerce clause by 
placing within congressional regulation the conditions .under 
which any articles of interstate commerce are produced. 

The history of the movement for a federal child labor law 
shows that movement to have been in the main a trial and error 
search for constitutionality. The most dangerous opposition to 
such a law did not come from the friends of child-labor, a 
group which grows constantly smaller and more silent; nor did 
it come from the "states rights" advocates, who, on grounds of 
policy and expediency, objected to the placing of child labor 
under uniform national control— for few intelligent persons are 
now prepared to deny that there is small hope for an effective 
suppression of the child labor curse in the divergent legislation 
of forty-eight states. On the contrary, the opposition which 
counted most came from those who, while sympathising with 
the objects of the law, honestly doubted that there was any sound 
constitutional basis upon which a child labor law under the com- 
merce clause could rest; who, in the apt phrase of one of their 
number, could not convince themselves "that 'accroachment of 
power' is expedient when benevolent, and that, though a child is 
entitled to protection, the constitution is not." 2 This was ap- 
parent from the very outset. The first federal child labor bill 
was introduced into the Senate in 1906 by Senator Albert J. 
Beveridge of Indiana. This pioneer bill forbade any interstate 
carrier to transport the products of any mine or factory in which 
children under fourteen years of age were employed; and to 
make the bill effective the management of any establishment 
desiring to ship goods in interstate commerce was compelled to 
give the common carrier a statement that no such children were 
employed in its plant. 3 In a brilliant speech extending over three 



2 Green. The Child Labor Law and the Constitution, 111. Law Bui., 
April, 1917, p. 6. 

3 The portions of this bill which are of interest in this connection are 
as follows : "Be it enacted . . . That six months from and after the 
passage of this act no carrier of interstate commerce shall transport or 
accept for transportation the products of any factory or mine in which 
children under fourteen years of age are employed or permitted to work, 
which products are offered to said interstate carrier by the firm, person, 
or corporation owning or operating said factory or mine, or any officer or 



454 MINNESOTA LAW REVIEW 

days Senator Beveridge set forth the need for such legislation 
and defended its constitutionality. 4 The most distinguished legal 
talent in the Senate was drawn into this debate ; and it was plain 
to see that with but few exceptions their views of its validity 
ranged from skepticism to the clear conviction that it was un- 
constitutional. 5 The bill never became law, and the Judiciary 
Committee of the House of Representatives to which it was 
referred made a report setting forth its belief that the bill was 
clearly invalid. 6 With the retirement of Mr. Beveridge from the 
Senate, the active efforts of congressmen to secure federal legis- 
lation upon the problem of child labor for the time being ceased. 
The Keating-Owen bill was the successor to the Beveridge 
bill. As introduced into the House, it forbade the shipment in 
interstate commerce of goods produced in whole or in part by 
the labor of children under fourteen years of age. This bill was 
not wholly satisfactory to the National Child Labor Committee 
which was sponsoring it, because placing the prohibition 
merely upon child-made goods narrowed considerably the scope 
of the act; though there was a belief that a stronger argument 
could be made for its constitutionality than for one broader in 

agent or servant thereof, for transportaton into any other state or territory 
than the one in which said factory is located. 

"Sec. 2. That no carrier of interstate commerce shall transport or 
accept for transportation the products of any factory or mine offered it for 
transportation by any person, firm, or corporation which owns or operates 
such factory or mine, or any officer, agent, or servant of such person, firm, 
or corporation, until the president or secretary or general manager of such 
corporation or a member of such firm or the person owning or operating 
such factory or mine shall file with said carrier an affidavit to the effect 
that children under fourteen years of age are not employed in such fac- 
tory or mine." The full text of this bill may be conveniently found at 
page 56 of the supplement to vol. XXIX, Annals of the American Acad- 
emy, etc., (1907). 

4 Cong. Rec. vol. 41, pp. 1552-1557, 1792-1826, 1867-1883. 

5 It was probably doubt as to the constitutionality of the Beveridge bill 
which led Senator Lodge to introduce a rival bill (S. 6730) on December 
5, 1906, which provided : "That the introduction into any state or territory 
or the District of Columbia, or shipment to any foreign country, of any 
article in the manufacture or production of which a minor under the age 
of fourteen years has been engaged is hereby prohibited." The second 
section applied a similar prohibition to goods made by children between 
fourteen and sixteen years, except those made by "any minor between the 
ages of fourteen and sixteen years to whom has been granted a certificate" 
by various school authorities "testifying to the fact that he or she is able 
to read and write the English language." This bill was referred to the 
Committee on Education and Labor, but it seems never to have attracted 
much notice or discussion. 

6 House Rep. No. 7304, 59th Cong., Second Session. Part of the argu- 
ment of this committee is quoted in Watson, Constitution, I, pp. 532-534. 



THE NATIONAL POLICE POWER 455 

scope. When the bill came before the Committee on Interstate 
Commerce in the Senate it was changed into the form in which 
it was finally enacted, a form which made it a far more effective 
law. 7 In this form it forbade not merely child-made goods but 
the products of any mine or factory in which children were em- 
ployed. The President signed the bill September 1, 1916, and 
by its terms it became effective September 1, 1917. Almost im- 
mediately a bill was filed in a federal district court in North 
Carolina by a father on behalf of himself and his two minor sons 
asking for an injunction against the enforcement of the act. The 
district court held the act unconstitutional, 8 and an appeal was 
taken to the Supreme Court of the United States. On June 3, 
1918, the Supreme Court handed down a five to four decision 
invalidating the law. 9 

Few questions have arisen in recent years in our constitutional 
law upon which the professional opinion of the country has been 
more evenly divided. Few questions have called forth on both 
sides abler or more convincing arguments. Discussion of the 
question had been kept up intermittently during the dozen years 
between the introduction of the Beveridge bill and the decision 
of the Supreme Court upon the constitutionality of the Keating- 
Owen Act ; and that decision, rendered as it was by an almost 
evenly divided court with a vigorous dissenting minority, called 



7 An account of the legislative history of the bill is found in Pamphlet 
No. 265 of the National Child Labor Committee (1916). 

The relevant portion of this act is as follows : "Be it enacted .... 
That no producer, manufacturer, or dealer shall ship or deliver for ship- 
ment in interstate or foreign commerce any article or commodity the 
produot of any mine or quarry, situated in the United States, in which 
within thirty days prior to the time of the removal of such product there- 
from children under the age of sixteen years have been employed or per- 
mitted to work, or any article or commodity the product of any mill, 
cannery, workshop, factory, or manufacturing establishment, situated in 
the United States, in which within thirty days prior to the removal of such 
product therefrom children under the age of fourteen years have been 
employed or permitted to work, or children between the ages of fourteen 
years and sixteen years have been employed or permitted to work more 
than eight hours in any day, or more than six days in any week, or after 
the hour of seven o'clock postmeridian, or before the hour of six o'clock 
antemeridian." 

8 No opinion was written. This decision was rendered by the same 
judge who, according to press reports, has recently declared unconstitu- 
tional the clause of the Revenue Act of Feb. 24, 1919, placing a ten per 
cent excise tax upon the net profits of businesses employing children. 

9 Hammer v. Dagenhart, (1918) 247 U. S. 251, 62 L. Ed. 1101, 38 S. C. 
R. 529. 



456 MINNESOTA LAW REVIEW 

forth a new grist of opinion. 10 Even now the layman who ap- 
proaches the problem without definite preconceptions is greatly 
in danger of experiencing a painful instability of opinion and of 
finding himself landed finally on the side of the advocate or critic 
to whose arguments he last gave ear. 

There would be small justification for the writer to add to the 
already voluminous literature on the subject another argument 
for or against the validity of the federal Child Labor Law. How- 
ever, a discussion of the national police power under the com- 
merce clause would hardly be complete without some attempt to 
classify the precise constitutional issues involved in this attempt 
to extend that power so radically. An effort will be made, 
therefore, to set forth as plainly and fairly as possible the argu- 
ments which have been advanced, first by those who have believed 
the act to be unconstitutional and second by those who have 
regarded it as valid. In each case the reasoning of the majority 
and minority, respectively, of the Supreme Court will be briefly 
summarized as fitting conclusions to the briefs. 

The Argument Against the Constitutionality of the Law 

Inasmuch as the constitutionality of a law is to be presumed 
until disproved, it will be appropriate to present first the argu- 
ments of those who have attacked the validity of the law. 11 These 
arguments quite naturally differ a great deal in persuasiveness, 
in thoroughness of reasoning, and in the emphasis placed upon 
the different points considered. In spite of this diversity it is 
possible to melt them all together into a brief composed of three 
major arguments, which will be considered separately. The 
writer has made no special effort at originality in setting forth 



10 While there are differences between the provisions of the Beveridge 
bill and the Keating-Owen Act, these differences are largely in the method 
used to accomplish the legislative purpose and not differences in consti- 
tutional principle. The fundamental issue of constitutionality seems to be 
the same in both, and the arguments for and against the measures are 
applicable to both alike. 

11 In addition to the arguments presented in the debate in Congress 
above referred to (see note 4, supra), the Beveridge bill was criticized 
on constitutional grounds by the following writers : Bruce, The Beveridge 
Child Labor Bill and the United States as Parens Patriae, (1907) 5 Mich. 
Law Rev. 627 ; Maxey, The Constitutionality of the Beveridge Child Labor 
Bill, (1907) 19 Green Bag 290; Knox, Development of the Federal Power 
to Regulate Commerce, (1908) 17 Yale Law Jour. 135; Willoughby, Con- 
stitution, II, Sec. 348; Watson, Constitution, I, pp. 523-534. Before the 



THE NATIONAL POLICE POWER 457 

these arguments, but has attempted to present a sort of com- 
posite picture made up of all of them, a picture in which, as in 
the real composite photograph, the details of each component are 
lost to view, but in which the common characteristics stand out 
vividly. 

1. It Is Not a Regulation of Commerce. It is important to 
bear in mind that Congress has no power to deal openly and 
directly with the evil of child labor. It merely has the right to 
regulate interstate commerce. Therefore, while the federal 
Child Labor Law was admittedly passed for the purpose of driv- 
ing child labor out of existence, it was compelled, from the 
standpoint of constitutional law, to seek justification not as a 
child labor law but as a regulation of interstate commerce. If 
it can be shown that the law is not a regulation of interstate com- 
merce, then its constitutional underpinning collapses and it must 
be regarded as an attempt by Congress to exercise a power which 
it does not possess under the constitution. Probably without ex- 
ception the opponents of the law have built their case around this 
central and vital point, that it is not a regulation of commerce. 
The arguments advanced in support of this proposition may be 
set forth as follows : 

(a) Not Every Regulation Dealing with Commerce Is a 
Regulation of Commerce in the Constitutional Sense: The fact 
that the Child Labor Law is entitled "An Act to Prevent Inter- 
state Commerce in the Products of Child Labor, and for Other 
Purposes," coupled with the fact that the thing which the law 
punishes is not the employment of children, but the shipment 
in interstate commerce of certain commodities, raises an initial 
presumption that it is a regulation of commerce. Constitutional 



Keating-Owen Act was declared invalid, its constitutionality was attacked 
in the following articles : Green, The Child Labor Law and the Constitu- 
tion, 111. Law Bui., April, 1917; Gleick, The Constitutionality of the Child 
Labor Law, (1918) 24 Case and Com. 801 ; Hull, The Federal Child Labor 
Law, (1916) 31 Pol. Sci. Quar. 519; Krum, Child Labor, (1917) 24 Case 
and Com. 486. See also the general criticism in Hough, Covert Legisla- 
tion and the Constitution, (1917) 30 Harv. Law Rev. 801. The decision of 
the Supreme Court in Hammer v. Dagenhart, supra, note 9, was discussed 
with approval in the following articles : Berry, The Police Power of Con- 
gress under Authority to Regulate Commerce, (1918) 87 Cent. Law Jour. 
314; Bruce, Interstate Commerce and Child Labor, (1919) 3 Minnesota 
Law Review 89; Green, Social Justice and Interstate Commerce, (1918) 
208 North Amer. Rev. 387; and note, (1919) 2 111. Law Bui. 126; Taft, 
The Power of Congress to Override the States, (July, 1918) 15 Open Shop 
Rev. 273. See also editorial (1918) in 86 Cent. Law Jour. 441. 



458 MINNESOTA LAW REVIEW 

phrases must not, however, be construed "with childish literal- 
ness." It must not be naively assumed that everything which 
is labeled a regulation of commerce or which in some way affects 
commerce is a regulation of commerce in the constitutional sense. 
The extent and nature of the power of Congress over interstate 
commerce must be interpreted in the light of the purposes for 
which the power was granted. 12 For instance, the governments 
of the state and nation enjoy a power of taxation which in "the 
extent of its exercise is in its very nature unlimited;" 13 yet when 
the state of Kansas authorized a city to levy a tax for a private 
and not a public purpose the Supreme Court of the United States 
declared that the levy was not a tax, merely "because it is done 
under the forms of law and is called taxation," but was "a decree 
under legislative forms." 14 In like manner the Child Labor Law 
is not necessarily a regulation of commerce simply because it is 
done under the forms of law and is called "a regulation of com- 
merce." 

(b) Power to Regulate Interstate Commerce Was Given to 
Promote and Not to Destroy Commerce : If we had no light 
whatever upon the purposes for which the power to regulate 
commerce was given to Congress by the framers of the consti- 
tution, it would still be reasonable to argue that the power to 
"regulate" does not include any general power to "destroy" or to 
"prohibit" commerce. A grant of "the power to regulate neces- 
sarily implies the existence of the thing to be regulated." 15 
Where power has been given to state legislatures or city councils 
to "regulate" the liquor traffic the courts have held that no au- 
thority was thereby given to "prohibit" such traffic. 16 It is logical 
to assume that the power to regulate commerce should be though; 
of as "a power to regulate acts of commerce so as to promote the 
good or prevent the evil that might flow from those acts." 17 
While it might properly include the power to make all necessary 
rules to protect commerce and promote its efficiency and to pre- 

12 This point is clearly developed by Professor Green, op. cit., 111. Law 
Bui., note 11, supra. 

is Loan Association v. Topeka, (1874) 20 Wall. (U.S.) 655; 22 L. Ed. 
455. 

14 Ibid. 

15 Watson, Constitution, I. p. 532, citing State v. Clark, 54 Mo. 17; State 
v. McCann, 72 Tenn. [4 Lea] 1. 

16 Watson, op. cit., p. 532. 

17 Green, op. cit., 111. Law Bui. 13. 



THE NATIONAL POLICE POWER 459 

vent the injury to the national welfare which might flow from 
the acts and transactions of commerce, it cannot be held to 
include the authority to prohibit commerce in innocent and harm- 
less commodities. 

But we are not entirely in the dark as to the purposes for 
which the "fathers" placed the power to regulate commerce in 
the hands of Congress. While the debates in the Convention of 
1787 do not throw much light on the subject, the whole history 
of the Confederation as well as the contemporary literature of 
the period would seem to indicate a hope and desire that Con- 
gress would bring about freedom of commercial intercourse, 
freedom which would replace the oppressive and mutually re- 
taliatory obstructions which emanated from the jealousies of 
the separate states. There was apparently no thought that 
Congress was being given power by the new constitution to 
prohibit commerce in legitimate articles because it disapproved 
of the local conditions under which they were produced. While 
the Convention of 1787 went out of its way to forbid in express 
terms any congressional interference with the importation of 
slaves prior to 1808, 18 yet it made no effort to prevent Congress 
from excluding from commerce the products of slave-labor, — 
an exclusion clearly in line with the Child Labor Law — quite as 
though it assumed that Congress had no such authority. Cer- 
tainly it can hardly be believed that either the framers of the 
constitution or the conventions w r hich ratified it had any idea 
that they had given to Congress any power under the commerce 
clause to knife the institution of slavery in the back. 

It has been forcefully argued that since, prior to the adoption 
of the constitution, the several states enjoyed full and sovereign 
power to prohibit commerce with the other states, as any inde- 
pendent nation might prohibit it, and that since the states gave 
up their power to Congress and made that power of Congress 
plenary and exclusive, it must therefore follow that Congress 
received all the power that the states gave up. 19 Otherwise what 
became of it? The answer is that it went back into the hands 
of the people, the same "people" who hold all the other powers 
of government "not delegated to the United States bv the Con- 



18 Art. I, Sec. 9. On this point see Green, op. cit, North Amer. Rev., 
note 11, supra. 

19 Infra, p. 472. 



460 MINNESOTA LAW REVIEW 

stitution" nor "reserved to the States respectively." 20 Indeed, 
it is quite within reason to suppose that the framers of the con- 
stitution consciously intended to wipe out of existence entirely 
any power to prohibit interstate commerce in legitimate com- 
modities by withdrawing that power from the individual states 
which had abused it and by failing to confer it upon Congress 
which might abuse it. 

(c) In Its Real Purpose and Effect the Law Has Nothing to 
Do with Interstate Commerce : The contention that the Child 
Labor Law is not a regulation of interstate commerce in the 
constitutional sense has been most frequently and cogently 
grounded upon the fact that the purpose and effect of the act 
is to prohibit child labor, something quite remote from the act 
of shipping commodities in interstate commerce. "Its purpose 
and effect are to benefit children and not to benefit commerce." 21 
Thus the statute is looked upon as somehow fraudulent, or mis- 
branded. This argument is presented in several ways. 

It has been urged by some that the Child Labor Law is in 
effect a denial by Congress of the privileges of interstate com- 
merce as a penalty for doing things of which Congress does not 
approve but which it has no power to prohibit directly. This has 
been aptly expressed in this way: "Plainly the reason for the 
statute must be stated in the first instance in this form : 'The 
state does not like what you are doing. Therefore it has for- 
bidden you to do something else — ship certain goods — not be- 
cause that is in the least degree objectionable, but because the 
state thinks it can in this way make you so uncomfortable 
that you will quit employing children." 22 In commenting on the 
case in which the Supreme Court held the law invalid, ex- 
President Taft said : "The majority of the court decided that this 
was an attempt by Congress to regulate the use of child labor 
in the state. Will any man say that this was not its purpose? 
It was a congressional threat to the state, 'Unless you make your 
labor laws to suit us we shall prevent your use of interstate 
commerce for the sale of your goods.' " 23 In short, when Congress 
uses its power over commerce as a "club for belaboring persons 

20 Constitution of the United States, Amendment X. 

21 Green, op. cit, 111. Law Bui., note 11, supra. 

22 Ibid. 

23 Taft, op. cit., note 11, supra. 



THE NATIONAL POLICE POWER 461 

whose habits it does not approve," 24 its action ought in reason to 
be regarded as a regulation not of the club but of the thing or 
person clubbed. 

Others have laid emphasis in this connection on the fact that 
the statute is in effect a regulation of manufacturing or produc- 
tion. It is then pointed out that manufacturing is antecedent to 
and wholly separate from commerce and transportation and that 
the authority of Congress extends only to the latter. 25 

It is further suggested that the purpose and effect of the act 
is to regulate the relations between employers and employees 
who are not themselves engaged in the processes of interstate 
commerce, and to regulate them in respect to a matter that in 
no way concerns interstate commerce, — namely, the age of the 
employee. In the Adair case 26 Mr. Justice Harlan pointed out 
that a regulation of the relations between master and servant in 
respect to the membership of employees in a labor union did not 
bear sufficiently close connection to interstate commerce to be 
regarded as a legitimate regulation of that commerce. The 
regulation imposed upon employers by the Child Labor Law is 
thought to be still less closely related to interstate commerce. 

It is quite natural that those who attack the Child Labor Law 
on the ground that it is too remote from interstate commerce 
to be a legitimate regulation of it should be challenged to show 
that the law is less a regulation of commerce than the Lottery 
Act, the Pure Food Act, the White Slave Act, and the other 
statutes by which Congress has prohibited commerce in various 
commodities. The friends of the law claim that the only possible 
distinction between the Child Labor Law and these other acts 
the validity of which is no longer open to question is that in the 
one case Congress uses its power over interstate commerce to 
protect the producer and in the other case to protect the con- 
sumer. This distinction, it is urged, is wholly irrelevant and 
immaterial so far as any question of the constitutional limits of 

24 Green, op. cit, North Amer. Rev., note 11, supra. 

25 The cases usually relied on to support this view are United States 
v. E. C. Knight Co., (1895) 156 U. S. 1, 39 L. Ed. 325, 15 S. C. R. 249; 
Kidd v. Pearson, (1888) 128 U. S. 1, 32 L. Ed. 346, 9 S. C. R. 6; In re 
Greene, (1892) 52 Fed. 104. 

26 Adair v. United States, (1908) 208 U. S. 161, 52 L. Ed. 436, 28 
S. C. R. 277, 13 Ann. Cas. 764. Professor Goodnow severely criticizes 
the use of the Adair case as an authority to prove the Child Labor Law 
not a regulation of commerce. See Social Reform and the Constitution, 
87. 



462 MINNESOTA LAW REVIEW 

congressional power over commerce is concerned, since there is 
nothing in the constitution nor in the decisions of the Supreme 
Court to indicate that the consumer is any more entitled to pro- 
tection through any exercise of the commerce power than is the 
producer. 27 

It seems clear that this distinction between regulations which 
guard the interests of the consumer and those which seek to 
improve the condition of the producer has been given a promi- 
nence by writers on both sides of this controversy which has 
tended to obscure what the opponents of the law regard as the 
vital distinction between it and the police regulations which 
Congress has previously enacted under the commerce clause. This 
distinction is that in the Lottery and White Slave Acts Congress 
has used its power over interstate commerce to prevent evils 
which might be said to result in the sense of actual causation from 
the acts or processes of interstate commerce. "In all of these 
cases, the introduction of the thing carried into the state is an 
act of evil tendency. Introducing it contributes to produce evil ; 
it is a part of a course of action by which evil is consummated." 28 
These acts are all "regulations of commerce made with a view 
to the results that may flow from the commerce regulated; to 
prevent evils that, unregulated, it might produce, or to promote 
benefits that, unregulated, it might not produce." 29 But the Child 
Labor Law does not prevent any evil which can be said to result 
from the acts or transaction of interstate commerce. The curse 
of child labor cannot be said to be promoted by the freedom of 
the employer of children to ship his products in interstate com- 
merce simply because he might cease to employ children if that 
freedom were denied to him, any more than it can be said that 
child labor is promoted by free education because those who now 
employ children might cease to do so if, because of that, they 
were denied the right to send their children to the public schools. 
It cannot be said, therefore, that when Congress passed the Child 
Labor Law it was preventing the use of interstate commerce as 
a means of promoting a national evil, since the evil in question 
is not in any reasonable sense promoted by the uninterrupted 
flow of interstate commerce. This fact makes clear the distinc- 



27 Infra, p. 475. 

28 Green, op. cit., North Amer. Rev., note 11, supra. 

29 Ibid. 



THE NATIONAL POLICE POWER 463 

tion between this act and the other instances in which Congress 
has exercised police power under the commerce clause. 

It would seem that those who regard the Child Labor Law 
as just as real and thoroughgoing a regulation of commerce as 
the Lottery Act or the White Slave Act have trod, perhaps un- 
consciously, the following steps: (1) By passing these regula- 
tions of commerce, the Lottery Act and so forth, Congress has 
openly intended to protect the public morals, health, and safety, 
and has exercised a police power. (2) Therefore Congress en- 
joys a broad police power in the exercise of which it may set up 
any type of control over interstate commerce which will result 
in benefit to the public morals, health, and safety. (3) The 
exclusion of the output of child labor factories from interstate 
commerce will result in great good to the nation by safeguarding 
its children. (4) Therefore the Child Labor Law is a proper 
exercise of this police power of Congress under the commerce 
clause and should be regarded with no more suspicion or disfavor 
than the White Slave Act or the Lottery Act, which have also 
protected the national health, morals, and general welfare. Now 
the opponents of the Child Labor Law believe that there is a non 
sequitur between (1) and (2). It does not follow from the 
authority of the Lottery Case 30 and the Hoke 31 case that Con- 
gress has a police power unlimited in scope and limited only in 
the means available for its exercise. Congress has police power, 
but only such as can be exercised within the limits of the domain 
under congressional control — interstate commerce. This police 
power extends to the suppression of any evil which threatens 
interstate commerce or arises from or is being consummated by 
that commerce. Now the evil of child labor does not exist with- 
in the domain of interstate commerce; it exists where the chil- 
dren are employed. "The menace in the case of child labor is 
over and done with when the product is manufactured. . . . 
The exercise of the police power in prohibiting the use of inter- 
state transportation for such products will operate of course as 
a deterrent. But it seems clear that thereby the police power 
becomes operative outside of the domain of interstate commerce. 
And beyond the borders of that domain the police power of 



30 (1903) 188 U. S. 321, 47 L. Ed. 492, 23 S. C. R. 321. 
3i (1913) 227 U. S. 308, 57 L. Ed. 523, 33 S. C. R. 281. 



464 MINNESOTA LAW REVIEW 

Congress, like the king's writ beyond his kingdom, does not 
run." 32 

This is not a matter of inquiring into congressional motives 
and invalidating a law because those motives were disingenuous. 
It is purely a question of power. The act fails as a regulation 
of commerce not because its purpose and effect are to prohibit 
child labor but because the child labor prohibited has nothing to 
do with interstate commerce. If interstate railroads employed 
children, Congress could doubtless forbid the employment of chil- 
dren in interstate commerce, just as it has prevented cruelty to 
animals while they are being transported by an interstate car- 
rier. 33 Such a law would deal with an evil which existed within 
the domain of interstate commerce and not an evil which is over 
and done with before the commerce the power to regulate which 
forms the basis of congressional action begins. 

The opponents of the Child Labor Law argue further that 
the extensive and arbitrary power which Congress has used to 
prohibit foreign commerce in various commodities constitutes 
no authority for the exercise of a similar power over interstate 
commerce. The power of Congress over foreign commerce is 
more extensive than over interstate commerce. Several reasons 
support this view. In the first place, the commerce clause is not 
the exclusive source of the power which Congress enjoys over 
foreign commerce. The power over foreign commerce derived 
from the commerce clause is supplemented by the power derived 
from the sovereign authority of the federal government to regu- 
late its relations with other countries. 34 In the second place, 
assuming that the word "regulate" used in the commerce clause 
means the same and bestows the same power upon Congress in 
regard to both interstate and foreign commerce, nevertheless 
there are certain constitutional limitations which operate as re- 
strictions upon congressional power over interstate commerce 
which do not apply to foreign commerce in the same way. The 
dissenting opinion of Chief Justice Fuller in the Lottery Case* 5 
suggests that the power of Congress over interstate commerce is 
subject to a limitation growing out of the "implied or reserved 
power in the states" which would not apply to the regulation of 

32 Hull, op. cit, 524, note 11, supra. 

33 Act of Mar. 3, 1891, 26 Stat, at L. 833. 

34 Willoughby, Constitution, Sees. 64, 66, 374, with cases cited. 

35 Note 30, supra. 



THE NATIONAL POLICE POWER 465 

interstate commerce. This amounts to invoking indirectly the 
Tenth Amendment as a restriction on the power over interstate 
commerce. It has been intimated elsewhere by the court as well 
as by other authorities that while the complete prohibitions of 
foreign commerce would not deprive any one of property with- 
out due process of law, since no individual has a right to trade 
with foreign nations, 36 a similar 1 prohibition of interstate com- 
merce might under many circumstances amount to a denial of 
due process of law by invading the constitutional right of the 
citizen to engage in such commerce. In the third place, in spite 
of numerous dicta in early opinions to the effect that the scope 
of congressional authority over the two kinds of commerce is 
identical, there is not a single case, out of all that have afforded 
an opportunity for such a decision, in which the Supreme Court 
has decided squarely that it is. 37 

In similar manner it is pointed out that the police power 
which Congress has exercised through its control over the postal 
system, a power which has been used to exclude from the mails 
a wide variety of things, does not constitute any authority for 
the power used to pass the Child Labor Law. In the first place, 
it is impossible to mention any act by which Congress has actually 
excluded any commodity from the mails because of the objec- 
tionable character of the conditions under which it was produced; 
and in the second place, the power of Congress over the postal 
system is broader than over interstate commerce, inasmuch as 
Congress has explicit authority to "establish post offices and post 
roads, " 3S while in respect to interstate commerce the power given 
is not to "establish" but to "regulate." It may very properly be 
argued that no one is deprived of any property right without due 
process of law by being denied the enjoyment even somewhat 
arbitrarily of privileges and facilities which Congress may not 

36 "As a result of the complete power of Congress over foreign 
commerce, it necessarily follows that no individual has a vested right 
to trade with foreign nations which is so broad in character as to limit 
and restrict the power of Congress to determine what articles of mer- 
chandise may be imported into this country and the terms upon which a 
right to import may be exercised. This being true, it results that a 
statute which restrains the introduction of particular goods into the 
United States from considerations of public policy does not violate the 
due process clause of the Constitution." Buttfield v. Stranahan, (1904) 
192 U. S. 470, 48 L. Ed. 525, 24 S. C. R. 349. 

37 Senator Knox made this statement during the course of the debate 
in the Senate on the Beveridge bill. Cong. Rec. vol. 41, p. 1879. 

38 Constitution of the United States, Art. I, Sec. 8. 



466 MINNESOTA LAW REVIEW 

merely create but may also destroy; whereas he may claim a 
higher degree of protection for his right to engage in an inter- 
state commerce which was not in the power of Congress to create 
but merely to "regulate." 39 

The foregoing analysis presents what the writer regards as 
the more important arguments which have been used to prove 
that the Child Labor Law is not a regulation of commerce in the 
constitutional sense. A somewhat extended discussion of the 
point has seemed desirable, because it is without question the point 
which has been most hotly debated and which has seemed to the 
authorities on both sides of the case the most vital issue involved 
in the whole controversy. 

2. It Violates the Tenth Amendment. The Tenth Amend- 
ment reserves to the states or to the people all powers not dele- 
gated to the federal government nor prohibited to the states. It 
has been alleged that the federal Child Labor Law contravenes 
this amendment. 

Now if the opponents of the law succeed in establishing their 
contention that the act is not a regulation of commerce, then it 
would seem to follow as a matter of course that Congress has 
passed a law which cannot be justified as an exercise of any 
delegated power, and such a law becomes ipso facto an invasion 
of the reserved rights of the states. The argument has not 
always been put, however, in this conservative form. More than 
one critic of the law has urged as a more or less separate objec- 
tion to it that in its purpose and effect it invades the reserved 
rights of the states and therefore violates the spirit if not the 
letter of the Tenth Amendment. "It was conceded by all," de- 
clared ex-President Taft, "that only States could regulate child 
labor. . . . Can any man fairly say that this was not an 
effort of Congress, by duress, to control the discretion of the 



39 This distinction is emphasized with clearness by Bruce, op. cit., 3 
Minnesota Law Review 96, and also by Willoughby, op. cit., Sec. 349. 
Both writers rely upon the statement of the court in Ex parte Jackson. 
(1877) 96 U. S. 727, 24 L. Ed. 877: "We do not think that Congress 
possesses the power to prevent the transportation in other ways, as 
merchandise, of matter which it excludes from the mails. To give efficiency 
to its regulations and to prevent rival postal S3 r stems, it may perhaps 
prohibit the carriage by others for hire, over postal routes, of articles 
which legitimately constitute mail matter, in the sense in which those 
terms were used when the Constitution was adopted, consisting of letters, 
and of newspapers and pamphlets when not sent as merchandise ; but 
further than this its power of prohibition cannot extend." 



THE NATIONAL POLICE POWER 467 

State intended by the Constitution to be free?" 40 Professor 
Willoughby regards it as "an attempt upon the part of the Federal 
Government to regulate a matter reserved to the control of the 
States." 41 The same view is most emphatically expressed by the 
Judiciary Committee of the House of Representatives in reporting 
upon the Beveridge bill. They said : "The lives, health, and 
property of the women and children engaged in labor are exclu- 
sively within the power of the States, originally and always be- 
longing to the States, not surrendered by them to Congress. 
. The assertion of such power by Congress would destroy 
every vestige of State authority, obliterate State lines, nullify the 
great work of the framers of the Constitution, and leave the State 
governments mere matters of form, devoid of power, and ought 
Jto more than satisfy the fondest dreams of those favoring cen- 
tralization of power." 42 

While courts have usually refrained from invalidating laws 
because of their alleged violation of the "spirit" of the constitu- 
tional prohibitions in cases where. some doubt has existed as to 
the violation of the letter, attention is called to the fact that one 
of the important restrictions upon the power of the states and of 
the federal government to levy taxes has been grounded, not upon 
any specific clause of the constitution, but upon the essential 
nature of the federal union. This is the restriction upon the lay- 
ing by either government of taxes upon the agencies, property, 
functions, or instrumentalities of the other. 43 While this re- 
striction has not rested upon any alleged violation of the Tenth 
Amendment, it has been argued that it would not be unreasonable 
for the Supreme Court to use it as authority by way of analogy 
for recognizing the existence of certain restrictions upon the 
exercise by Congress of its power to regulate commerce when by 



40 Taft, op. cit, p. 273, note 11, supra. 

41 Willoughby. op. cit., II, Sec. 348 

42 Quoted by Watson, op. cit., pp. 532-534. 

43 Willoughby, op. cit.. I. Sec. 40. In The Collector v. Day, (1870) 
11 Wall. (U.S.) 113. 20 L. Ed. 122. the court said: "It is admitted that 
there is no express provision in the Constitution that prohibits the 
general government from taxing the means and instrumentalities of the 
states, nor is there any prohibiting the states from taxing the means and 
instrumentalities of that government. In both cases the exemption rests 
upon necessary implication, and is upheld by the great law of self-pres- 
ervation ; as any government, whose means employed in conducting its 
operations, if subject to the control of another and distinct government, 
can exist onlv at the mercy of that government." See also Green, op. 
cit., 111. Law Bui. 13. 



468 MINNESOTA LAW REVIEW 

such regulation the essential nature of the federal union in the 
matter of the distribution of powers is being threatened. 

3. It Takes Liberty and Property Without Due Process of 
Law. Even if it be granted, however, that the Child Labor Law 
is a regulation of commerce in the constitutional sense and that 
it is not a violation of the Tenth Amendment, it has still been 
the object of attack as an act which deprives persons of liberty 
and property without due process of law. It has already been 
made clear 44 that any exercise of a national police power must 
be kept within the limits of the specific restrictions of the Bill 
of Rights, perhaps the most important of which is the due process 
clause of the Fifth Amendment. 45 The argument that the act 
is a violation of the guarantee of due process of law has taken 
two forms. 

In the first place, it has been urged that "the right to liberty 
and property would certainly include the continuance of the right 
of interstate traffic in goods which were in themselves harmless 
and innocent." 46 No one can be said to enjoy a property right to 
ship commodities in interstate commerce when those commodities 
are harmful or when the shipment itself is an act of evil tendency. 
But any prohibition placed by Congress upon the right to ship 
harmless commodities destined for harmless uses constitutes an 
arbitrary invasion of a property right and is a denial of due 
process of law. 

Now those who deny the validity of the Child Labor Law do 
not agree among themselves that there is a property right to ship 
goods in interstate commerce. 47 But even assuming that no such 
right does exist, it is still urged that the law fails of due process. 
It is well established that any state may prohibit child labor with- 
out depriving any one of his constitutional rights ; but it is equally 
well established that Congress cannot directly prohibit child labor 
under any power it now possesses. Now it is argued that even if 
the right to ship harmless goods in interstate commerce is one 
which Congress under the commerce clause might legitimately 
take away entirely, it would still be a denial of liberty or prop- 
erty without due process of law for Congress to make the con- 
tinued enjoyment of the privileges of interstate commerce con- 

44 3 Minnesota Law Review 299. 

45 Constitution of the United States, Amendment V. 

46 Bruce, op. cit.. 5 Mich. Law Rev. 636. 

47 See infra, p. 476. 



THE NATIONAL POLICE POWER 469 

tingent upon abandoning a course of action which so far as any 
possible prohibition by Congress is concerned a person has a per- 
fect right to pursue. In other words, Congress cannot withdraw 
a privilege which can be enjoyed only under its permission, for 
the purpose of making that withdrawal a punishment for doing 
something which Congress had no direct authority to forbid. Such 
an exercise of power by Congress rests upon the same principle 
as a state statute which, while not directly forbidding child labor, 
forbids those who employ children "to shave, to ride in an auto- 
mobile, or to have children of their own." 48 It is one thing to 
prohibit child labor directly; it is another and far different 
thing to permit the continuance of child labor only on the condi- 
tion of the forfeiture of a right or privilege shared by all the 
other members of the community. In Western Union Telegraph 
Company v. Kansas* 9 the Supreme Court held that the plaintiff 
company had been denied due process of law by a statute which 
' made its admission into the state as a foreign corporation — ad- 
mission which it was granted the state was under no obligation 
whatever to allow — contingent upon payment by the company of 
taxes which the state was without constitutional authority to im- 
pose. There are other cases in which a similar principle has been 
applied. 50 It is in the light of the authority of these cases and 
the reasoning set forth above that the Child Labor Law is be- 
lieved to work a denial of due process of law. 

4. The Majority Opinion of the Supreme Court:' 1 It is 
unnecessary to dwell at length upon the opinion of the majority 
of the Supreme Court which held the federal Child Labor Law 
invalid. That opinion was reasoned with a brevity that was 
entirely surprising considering the importance of the question 
involved. It does not allude in any way to the contention of the 
plaintiff that the act works a denial of due process of law. The 
decision rested upon two points : first, that the Child Labor Law is 



* 8 Green, op. cit., 111. Law Bui. 11. The most effective statement of 
this argument is found in Professor Green's article. 

49 (1910) 216 U. S. 1, 54 L. Ed. 355, 30 S. C. R. 190. 

soHerndon v. Chicago, etc., Ry. Co., (1910) 218 U. S. 135, 54 L. Ed. 
970, 30 S. C. R. 633; Harrison v. St. Louis, etc., R. Co., (1914) 232 U. S. 
318, 58 L Ed. 621, 34 S. C. R. 333; New York Life Ins. Co. v. Head; 
(1914) 234 U. S. 149, 58 L. Ed. 332, 34 S. C. R. 879. These cases cited 
by Green, op. cit., 111. Law Bui. 18. 

51 Written by Mr. Justice Day and concurred in by Justices White, 
VanDevanter, Pitney, and McReynolds. 



470 MINNESOTA LAW REVIEW 

not a regulation of commerce, second, that it violates the Tenth 
Amendment. 

The first of these arguments proceeds along familiar lines. 
The power to "regulate" commerce is the power to "prescribe the 
rule by which commerce is to be governed," and does not include 
the right to "forbid commerce from moving and thus destroying 
it as to particular commodities." The cases in which Congress has 
prohibited interstate commerce in certain commodities have all 
rested "upon the character of the particular subjects dealt with 
and the fact that the scope of governmental authority, state or 
national, possessed over them is such that the authority to pro- 
hibit is as to them but the exertion of the power to regulate. . . . 
In each of these instances the use of interstate transportation was 
necessary to the accomplishment of harmful results." The Child 
Labor Law does not, however, regulate transportation, but aims 
to standardize child labor. The goods shipped are harmless and 
the fact that they may be intended for interstate commerce does 
not make them articles of that commerce at the time they were 
produced. There is no force in the argument that the law pre- 
vents unfair competition between states with child labor laws of 
different standards. So also there are many conditions which give 
certain states advantages over others, but Congress has no power 
to regulate local trade and commerce for such a purpose. 

The act violates the Tenth Amendment. "The grant of au- 
thority over a purely federal matter was not intended to destroy 
the local power always existing and carefully reserved to the 
states in the Tenth Amendment to the Constitution." Under the 
law Congress "exerts a power as to purely local matters to which 
the federal authority does not extend. The far reaching result of 
upholding the act cannot be more plainly indicated than by point- 
ing out that if Congress can thus regulate matters entrusted to 
local authority by prohibition of the movement of commodities in 
interstate commerce, all freedom of commerce will be at an end, 
and the power of the states over local matters may be elimi- 
nated, and thus our system of government be practically de- 
stroyed." 

The Argument for the Constitutionality of the Law 

The constitutionality of the Child Labor Law has probably 
been discussed more frequently and at greater length by its 



THE NATIONAL POLICE POWER 471 

friends than by its enemies. 52 An analysis of the arguments in 
support of the law indicates that they clash squarely at all vital 
points with the arguments which have just been set forth. They 
may, therefore, be grouped under the same three headings. 

1. It Is a Regulation of Commerce in the Constitutional Sense. 
The friends of the Child Labor Law have bent their efforts with 
special care to proving that it is a regulation of commerce in the 
constitutional sense, a task which has of course involved disprov- 
ing the arguments of their opponents that the law is not such a 
regulation. This task has been approached in a wide variety of 
ways and from many different points of view. The writer believes, 
however, that these arguments may all be subsumed under three 
major propositions, which if established would prove the point at 
issue. These will be treated in order. 

(a) The Power to Regulate Interstate Commerce Includes 
the Pozver to Prohibit Entirely Shipment in Such Commerce of 
Specified Persons and Property : In the first place, the power to 
prohibit is not incompatible with the power to regulate commerce. 
Even if it is true that "the power to regulate implies the existence 
of the thing regulated," 53 it is equally true that "the power to 
prescribe the rule by which commerce is carried on does not 
negative the power to prescribe that certain commerce shall not 
be carried on." 54 As Mr. Justice Holmes puts it, "Regulation 



52 Before the Supreme Court annulled the law, the following dis- 
cussions had appeared supporting its constitutionality: Goodnow, Social 
Reform and the Constitution, (1911) 80; MacChesney, Constitutionality 
of a Federal Child Labor Law. (1915) The Child Labor Bui. IV, p. 155; 
Parkinson, Brief for the Keating-Owen Bill, (1916) The Child Labor 
Bui., IV, pt. 2, p. 219; Constitutional Prohibitions of Interstate Com- 
merce, (1916) 16 Col. Law Rev. 367; The Federal Child Labor Law, 
(1916) 31 Pol. Sci. Quar. 531 ; Precedents for Federal Child Labor 
Legislation, (1915) The Child Labor Bui., IV, p. 72; Troutman, Con- 
stitutionality of a Federal Child Labor Law, (1914) 26 Green Bag 154; see 
also note, The Use of the Power over Interstate Commerce for Police 
Purposes, (1917) 30 Harv. Law Rev. 491. Since the decision in Hammer 
v. Dagenhart, supra, the opinion of the majority has been criticized in 
the following articles: Gordon, The Child Labor Law Case, (1918) 32 
Harv. Law Rev. 45; Jones, The Child Labor Decision, (1918) 6 Cal. Law 
Rev. 395; Parkinson, The Federal Child Labor Decision, (1918) The 
Child Labor Bui., (1918) VII, p. 89; Powell, The Child Labor Decision, 
(1918) The Nation, vol. 107, p. 730; The Child Labor Law, the Tenth 
Amendment and the Commerce Clause, (1918) 3 So. Law Quar. 175; 
see also note, (1918) 27 Yale Law Jour. 1092, and (1918) 17 Mich. Law 
Rev. 83. 

53 Note 15, supra. 

54 Powell, op. cit, So. Law Quar. 



472 MINNESOTA LAW REVIEW 

means the prohibition of something, and when interstate com- 
merce is the matter to be regulated I cannot doubt that the regu- 
lation may prohibit any part of such commerce that Congress 
sees fit to forbid." 55 

In the second place, there is evidence to indicate that the 
f ramers of the constitution intended the power given to Congress 
to regulate interstate commerce to include the power to prohibit 
such commerce in certain cases. This is shown, first, by the 
fact that they intended to give Congress all the power over inter- 
state commerce that the states had previously had and this in- 
cluded the power to prohibit such commerce. 56 It is shown, sec- 
ondly, that they specifically denied to Congress the right to pass 
any law prior to 1808 which should prohibit the "migration or im- 
portation" of slaves, 57 a denial of power entirely superfluous un- 
less the power to prohibit such commerce existed, in the absence 
of such denial. 

In the third place, the power to regulate foreign commerce 
has always been held to include the power to place prohibitions 
upon such commerce, 58 and the commerce clause gives to Congress 
the same power over interstate as over foreign commerce. The 
friends of the Child Labor Law do not infer from this that Con- 
gress could necessarily impose the same restrictions upon inter- 
state commerce as upon foreign commerce; but they assert that 
whatever difference there may be exists not because the power 
exercised is the power to regulate in the one case but not in the 
other, but because the limitations of due process of law affect 
the power to regulate in different ways. In other words, although 
the constitutional restrictions on that power may vary with the 
kind of commerce, the power to "regulate" remains the same. 
And since the power to regulate foreign commerce includes the 
power to prohibit it, it must of necessity follow that the power to 
regulate interstate commerce also includes the power to impose 
prohibitions upon it. 

Finally, it is only necessary to refer to the Lottery Act, the 
White Slave Act, and the Pure Food Act to show that there have 



55 Hammer v. Dagenhart, note 9, supra. 

56 This argument is carefully developed by Mr. Parkinson, op. cit, 
Col. Law Rev. 370 et seq. 

57 The Constitution of the United States, Art. I, Sec. 9. 

58 For citation of cases in support of this view see Parkinson, op. cit, 
The Child Labor Bui. 225-228; also note by E. B. Whitney, (1898) 7 
Yale Law Jour. 291. 



THE NATIONAL POLICE POWER 473 

been other cases in which the Supreme Court has viewed with 
approval the exercise by Congress of the power to prohibit en- 
tirely interstate commerce in certain commodities. 

(b) The Power to Regulate Interstate Commerce May Be 
Used for the Protection of Public Health, Morals, Safety, and 
Welfare in General : This point might perhaps be stated in this 
way: a regulation of commerce does not cease to be such merely 
because its purpose and effect are to eradicate evils over which 
Congress has no direct control. It is not the business of the 
Supreme Court to pry into the motives which prompt Congress to 
exercise its power to regulate commerce. Whatever restrictions 
there may be upon the power by reason of alleged violations of 
due process of law, the power to regulate commerce may properly 
be used by Congress to remedy any evils which may exist before, 
during, or after interstate commerce takes place, without making 
such action any less truly an exercise of the power to regulate 
such commerce. It is apparent that this view is in conflict with 
the position of the opponents of the Child Labor Law who argue 
that, while Congress may exercise a real police power under the 
commerce clause, that police power is limited to the actual do- 
main of interstate commerce and may only extend to the prohibi- 
tion of evils existing in or directly promoted by such commerce. 
The friends of the law, in short, look upon interstate commerce 
as a means entrusted to Congress to be used in any manner which 
will promote the public health, morals, and safety ; and they find 
in the Lottery Act, the White Slave Act, and laws of similar char- 
acter instances in which Congress has used the commerce power, 
not to protect any particular group of people, not to strike at 
evils which are limited to any particular locality, but to protect 
the nation at large from injury or danger. The evils, in other 
words, do not need to have any particular locus to be within the 
reach of congressional police power under the commerce clause. 
(c) No Distinctions Exist Between This Lazv and the Other 
Police Regulations Based on the Commerce Clause That Would 
Make It Less a Regulation of Commerce Than They : Those who 
believe the Child Labor Law to be constitutional feel that the 
efforts to distinguish it from the Lottery Act and so forth and to 
prove that, while those earlier acts were bona fide regulations of 
commerce, the Child Labor Law is not, are after all merely ef- 
forts to set up straw men for the purpose of knocking them down. 



474 MINNESOTA LAW REVIEW 

They take the position, first, that the alleged distinctions do not in 
fact exist; and, second, that if they did exist they would not 
prove the Child Labor Law to be any less a regulation of com- 
merce than the earlier statutes mentioned. 

In support of the first point it is contended that the Child 
Labor Law does not stand alone in excluding from interstate 
commerce articles in themselves harmless. Lottery tickets are 
no more harmful in themselves than milk tickets ; the goods ex- 
cluded by the Commodities Clause 59 are in all respects above re- 
proach; the anti-trust statutes forbid the shipment of goods in- 
trinsically indistinguishable from any other articles of commerce. 
Nor is it true that the Child Labor Law is unique in that it 
excludes goods when no danger or injury can result from their 
interstate transportation. The other police regulations passed by 
Congress under the commerce clause have rested usually on the 
ground that the forbidden shipments were "acts of evil tendency." 
So also is the shipment of goods manufactured in a child labor 
factory an act of evil tendency. It promotes child labor both be- 
fore and after the actual shipment takes place : before, because a 
producer could not afford to continue the employment of children 
if it cut him off from interstate markets ; after, because states 
which may honestly desire to abolish child labor feel a reluctance 
to place their own industries at the mercy of the competition which 
results from the shipping in from other states of goods made by 
children. It is a peculiarly naive logic which insists that a cause 
must always chronologically precede an effect, and that interstate 
commerce cannot cause or promote child labor because the im- 
mediate child labor is over before the immediate goods are de- 
livered to the interstate carrier. The manufacture of goods is a 
continuous process, and its effects control its beginnings quite 
as much as with lottery tickets. This point has been clearly put 
in language which is worthy of -quotation : "Clearly enough the 
transportation is a contributing factor to the employment of chil- 
dren, as it is to the consumption of liquor and the purchase of 
lottery tickets. In terms of physics, the transportation is a pull 
in the one case, "and a push in the others. The matter belongs, 
however, to the realm, not of physics, but of economics. And 
in economics the. push and the pull are not to be differentiated. 
In so far, then, as the majority [of the Supreme Court] imply 

59 See note 71, (1919) 3 Minnesota Law Review 311. 



THE NATIONAL POLICE POWER 475 

that the interstate transportation was not necessary to the harmful 
results aimed at by the Child Labor Law, they are obviously in 
error. Unless it were necessary, the law would have been idle 
and useless, no employer or 'next friend' of children would have 
objected to it, and it would not have touched, even obliquely, 
matters reserved to the states." 00 In other words, just as the 
Mann Act forbids the use of interstate commerce as a facility 
in carrying on the white slave traffic, so the Child Labor Law 
prohibits such commerce from being used to promote the evil 
of child labor, and there is, accordingly, no difference in prin- 
ciple between the two as to their being each a bona fide regu- 
lation of interstate commerce. 

But in the second place, even if it be admitted that there are 
important distinctions between the Child Labor Law and the 
other regulations enacted under the commerce clause, those dif- 
ferences do not have any bearing whatever upon the question 
whether the Child Labor Law is or is not a regulation of com- 
merce. The distinction, for example, that the Child Labor Law 
benefits the producer, while the Lottery Act and similar statutes 
protect the consumer, is an entirely artificial and worthless dis- 
tinction. The enemies of the law are challenged to show any- 
thing in the commerce clause itself, the acts of Congress passed 
in pursuance thereof, and the decisions of the United States 
Supreme Court, which in any way suggest that a prohibition of 
interstate commerce loses its character as a regulation of that 
commerce in the constitutional sense because it is the consumer 
of goods shipped, rather than the producer, who receives the 
benefit therefrom. To hold otherwise is to inject into the con- 
stitution something which the framers did not put there. "Pro- 
ponents [of this distinction] are standing on their political ideas 
of what ought to be in the Constitution rather than on what the 
Supreme Court has said is there." 61 In like manner, even if it 
is admitted for the sake of argument that the Child Labor Law 
excludes harmless commodities from interstate commerce, or 
even admitting that the exclusion established is arbitrary and 
unreasonable, this would not prove that the law is not a regula- 
tion of commerce. It would merely prove that Congress had 
regulated commerce in such a way as to deprive persons of 

60 Powell, op. cit. So. Law Quar. 197. 

61 Parkinson, op. cit., 31 Pol. Sci. Quar. 537. 



476 MINNESOTA LAW REVIEW 

liberty or property without due process of law. In the Lottery 
Case and in Clark Distilling Co. v. Western Maryland Ry. Co. 62 
the Supreme Court plainly intimated that power to exclude 
commodities from interstate commerce might be held to be limited 
so as to preclude its exercise in a manner palpably arbitrary, 
but in each of these cases the implication is very plain that any 
such limitation would arise from the due process of law clause 
and not at all from any implied narrowing of the meaning of 
the word "regulate" as used in the commerce clause. What the 
critics of the law have done in using the distinctions mentioned 
to prove that the Child Labor Law is not a regulation of com- 
merce is to employ an argument "built upon a due process dis- 
tinction and then unwarrantably transferred to the commerce 
clause." 63 

2. The Child Labor Law Does Not Work a Denial of Due 
Process of Law. When Senator Beveridge was defending the 
constitutionality of his child labor bill in 1906 he took the posi- 
tion that the power of Congress over interstate commerce was 
absolute, and that while Congress would naturally be restrained 
by considerations of policy and expediency from any arbitrary 
and unreasonable exercise of that power, the power itself was 
subject to no constitutional restrictions of any kind. 64 This 
means, of course, that Congress in the exercise of its commerce 
power is not restricted by any limitations arising from the due 
process of law clause of the Fifth Amendment. 

A writer on the subject who regards the law as unconstitu- 
tional upon other grounds takes the position that there is no 
property right to ship products in interstate commerce. That 
even if there were such a right it would be a "right to engage 
in interstate commerce lawfully regulated. So, if the regulation 
be lawful, the property right has existed subject to the regu- 
lation. And to assail the validity of the regulation by the due 
process clause is to argue in a circle." 65 

62 (1917) 242 U. S. 311, 61 L. Ed. 326, 37 S. C. R. 180. 

63 Powell, op. cit, 3 So. Law Quar. 194. 

64 In the course of the debate the senator said : "Will you ask rne 
whether or not I think we have power to prohibit the transportation 
in interstate commerce of the milk of a cow milked by a young lady 
eighteen years old? Undoubtedly we have the power, but undoubtedly 
we would not do it. We have the power to prohibit the transportation 
through interstate commerce of any article." Cong. Rec, vol. 41, p. 1826. 

65 Hull, op. cit., 31 Pol. Sci. Quar. 529. 



THE NATIONAL POLICE POWER A77 

With these two exceptions, there would seem to be no dis- 
agreement among friends and critics of the Child Labor Law 
that the validity of any congressional prohibitions of interstate 
commerce must be subject to due process of law; and this view 
is supported by decisions of the Supreme Court. 66 The pro- 
ponents of the law, however, deny that it deprives any person of 
property or liberty without due process of law and they advance 
the following arguments in support of their view. 

At the outset attention is called to the fact that "the due 
process does not protect things, but persons. Goods made by 
child labor have no constitutional immunities." 67 Therefore the 
law does not fail of due process merely because the goods shipped 
are harmless. 

Compliance with the test of due process does not depend, 
therefore, upon the character of the goods excluded but upon 
the effect of that exclusion upon the rights and immunities of 
those who are forbidden to ship the goods. Now a constitutional 
right to ship in interstate commerce the products of factories 
employing children must of necessity rest upon a constitutional 
right to employ children; just as the constitutional right to ship 
lottery tickets in interstate commerce depends upon the exist- 
ence of a constitutional right to conduct or engage in a lottery 
enterprise. The question then reduces itself to this: is there a 
right to employ children, of such a nature that an interference 
with it constitutes a denial of due proces of law? Now the tests 
of due process of law are not very definite, and the cases in 
which acts of Congress have been invalidated for violation of the 
due process clause of the Fifth Amendment are relatively rare and 
throw little or no light on this particular problem. However, it 
has been held that the requirement of due process of law im- 
posed on the federal government by the Fifth Amendment is 
the same in principle as the requirement of due process of law 
imposed upon the states by the Fourteenth Amendment. 68 And 
since it has long been established not only by the state courts 69 

66 As. for instance, in Adair v. United States, note 26, supra. See 
also 3 Minnesota Law Review 299. 

67 Powell, op. cit, 3 So. Law Quar. 194. 

68 Parkinson, op. cit, The Child Labor Bui. v. IV, pt 2. p. 245, citing 
Slaughter House Cases, (1872) 16 Wall. (U.S.) 26, 19 L. Ed. 915; Tona- 
wanda v. Lyon, (1901) 181 U. S. 389, 45 L. Ed. 908, 21 S. C. R. 609; 
Twining v. New Jersey, (1908) 211 U. S. 78, 53 L. Ed. 97, 29 S. C. R. 14. 

69 See 16 R. C. L. 477 and cases cited. 



478 MINNESOTA LAW REVIEW 

but also by the Supreme Court 70 that a state may forbid or 
regulate the employment of children without depriving anyone 
of liberty or property without due process of law, it must follow 
that Congress does not violate due process by interfering in a 
similar or analogous manner with the employment of children. 

It does not, however, follow from this argument that Congress 
can deny the privileges of interstate commerce to one who pur- 
sues any line of conduct that the state can interfere with without 
a violation on its part of due process of law. "So Congress 
could not prescribe that a man should not ship goods across a 
state line in case he violated his marriage vows. There would 
be no nexus between the infidelity and the transportation. But 
there is a nexus between making goods and shipping them. Evil 
in the making grows by the transportation it feeds on. Trans- 
portation increases child labor. It aids an evil which is a menace 
to the attainment of national objects. Congress cannot obliter- 
ate the evil. But it should be allowed to lessen it by denying it 
aid from the enjoyment of the highways under national control. 
If it ever should go further and seek to apply its commerce 
power to evils in no way dependent upon the commerce subject 
to its control, then the Supreme Court may with wisdom declare 
that it has failed to make a legitimate connection between its 
prohibition of transportation and the circumstances on which 
the prohibition is conditioned. But the court did not need to 
annul the Child Labor Law in order be free to deal with such 
cases if ever they should arise." 71 

3. It Does Not Violate the Tenth Amendment. Those who 
defend the Child Labor Law regard the contention that the law 
violates the Tenth Amendment with less respect than any of the 
other arguments directed against its constitutionality. They 
point out three weaknesses in it which convince them of its lack 
of merit. In the first place, the Child Labor Law takes away 
from the states no right reserved to them by the constitution. 
The law forbids the shipment of certain commodities across state 
lines ; it does not forbid the employment of children. No state 
at any time during its history has ever had the power to compel 
any other state to admit its products ; and during the Confed- 
eration the states freely exercised the power to set up embargoes 

70 Stur ? es & Burn Mfg. Co. v. Beauchamp, (1913) 231 U. S. 320, 58 
L. Ed. 245, 34 S. C. R. 60. 

71 Powell, op. cit, 3 So. Law Quar. 201. 



THE NATIONAL POLICE POWER 479 

and restrictions on goods from neighboring states. Therefore 
when the Child Labor Law takes from the individual states the 
right to impose the products of their industry upon other states 
through the' channels of interstate commerce it takes away no 
right which the states ever had and therefore no right which 
could have been reserved to them by the federal constitution. 

In the second place, it is held that it is unsound to declare the 
law void as an invasion of the reserved powers of the states 
because of its indirect or incidental effects. Never before has 
the exercise by Congress of an admitted power been held un- 
constitutional because of such incidental effects Upon the authority 
of the states. Although there have been plenty of instances in 
which congressional authority over interstate commerce, has been 
so exercised as to impair seriously the freedom of action of the 
states in matters within their jurisdiction, these have always been 
regarded as the inevitable results of our federal form of govern- 
ment. 72 Thus the Lottery Act, the Pure Food Act, the Meat 
Inspection Act, all in precisely the same way discourage the 
production of the commodities excluded from interstate com- 
merce. To invalidate one law because of its indirect invasion 
of the power of the states and not to treat in the same way other 
acts which also invade that power leaves upon the shoulders of 
the court the burden of determining when the indirect effects of 
a law are a sufficiently serious interference with state authority 
to warrant the interposition of the judicial ban; and we have 
thus opened up another fertile field for the production of judge- 
made law. 

Finally, the argument based on the Tenth Amendment is 
superfluous. "If the Child Labor Law was a proper exercise of 
power to regulate interstate commerce, it was by the explicit 
terms of the Tenth Amendment not an exercise of a power re- 
served to the states. If it was not a proper exercise of the power 
to regulate interstate commerce, it was unconstitutional, and 
nothing more need be said about it." 73 



72 An extreme example of this is the "Shreveport Case," Houston, 
etc., Ry. Co. v. United States. (1914) 234 U. S. 342, 58 L. Ecf 1341, 34 
S. C. R. 833, in which railroads were compelled to raise their intrastate 
freight rates which had been fixed by a state railroad commission, because 
those rates produced discrimination against competing shipments in in- 
terstate commerce which were being made at rates held reasonable by 
the Interstate Commerce Commission. 

73 Powell, op. cat., So. Law Quar. 



480 MINNESOTA LAW REVIEW 

4. The Dissenting Opinion of Mr. Justice Holmes. 74 The dis- 
senting opinion of Mr. Justice Holmes is not an attempt to build 
up a constructive argument in support of the Child Labor Law, 
but is rather a pungent criticism of the reasoning of the majority. 
Since the majority opinion did not take up at all the due process 
of law argument, the justice confined the batteries of his criti- 
cism in general to a single concise attack upon the remaining two 
points of difference. 

He protests most vigorously against invalidating an exercise 
by Congress of one of its admitted powers because of the col- 
lateral effect of such regulation upon matters reserved to state 
control. "I should have thought," declared the justice, "that 
the most conspicuous decisions of this court had made it clear 
that the power to regulate commerce and other constitutional 
powers could not be cut down or qualified by the fact that it 
might interfere with the carrying out of the domestic policy of 
any state." He then proceeds to comment on some of these 
"conspicuous decisions" in which the indirect effect upon state 
authority of congressional acts has been held quite irrelevant 
to the question of their validity. Furthermore, some of the acts 
already sustained have excluded from commerce commodities 
intrinsically harmless, and the Supreme Court in the- Hoke case 75 
has specifically put itself on record as upholding the use of the 
commerce power for police purposes. In these cases "it does 
not matter whether the supposed evil precedes or follows the 
transportation. It is enough that in the opinion of Congress the 
transportation encourages the evil." 76 

It is no longer open to dispute that the power to regulate 
commerce includes the power to prohibit it in some cases. Mr. 
Justice Holmes denies strenuously the propriety of upholding or 
invalidating the exercise of this power to prohibit commerce in 
accordance with judicial views of the morality or immorality of. 
the transactions prohibited. But if this were permissible, there 
is no denying that child labor is an evil which ought to be dealt 
with as readily as any other. "I should have thought that if we 
were to introduce our own moral conceptions where in my 
opinion they do not belong, this was pre-eminently a case for 
upholding the exercise of all its powers by the United States." 

74 Justices Brandeis, McKenna, and Clark concurred in the dissent. 

75 Note 31, supra. 

76 Mr. Justice Holmes, dissenting opinion, 247 U. S. at p. 279. 



THE NATIONAL POLICE POWER 48 1 

And finally, the law does not interfere with any power re- 
served to the states. "They may regulate their internal affairs 
and their domestic commerce as they like. But when they seek 
to send their products across the state line they are no longer 
within their rights. . .• . The public policy of the United 
States is shaped with a view to the benefit of the nation as a 
whole. . . . The national welfare as understood by Con- 
gress may require a different attitude within its sphere from that 
of some self-seeking state. It seems to me entirely constitutional 
for Congress to enforce its understanding by all the means at its 
command." 

Conclusion 

In the foregoing analysis of the arguments for and against the 
constitutionality of the Child Labor Law, the effort has been to 
make clear the exact issues involved in that controversy. It 
should also make clear that the advocates and opponents of the 
law disagreed not only upon the question of its validity but also 
upon the question of just what the actual result would be of a 
decision sustaining the law. Clearly it would advance the na- 
tional police power far beyond its old limits. To what extent 
would it be expanded? Would there be any real limits upon 
that expansion? 

The opponents of the law have felt that to uphold its consti- 
tutionality would be to open wide the door to congressional inter- 
ference in any and every matter now confided to state control. 
In fact, they have pretty unanimously been seized with an irre- 
sistible impulse to lapse into reductio ad absurdum and paint in 
the most lurid colors the constitutional havoc wrought upon 
state authority and state institutions by such a doctrine. They 
argue that, if a man can be denied the privileges of interstate 
commerce because he employs children, he can be denied those 
privileges because of any other line of conduct which a majority 
in Congress view with disapproval; the line which now exists 
between the police power of the state and the regulatory power 
of Congress would be obliterated, and the only difference between 
the authority of the two governments to regulate the conduct of 
its citizens would be that one could act directly and the other by 
a process of indirection. 



482 MINNESOTA LAW REVIEW 

It seems clear that some at least who have taken this extreme 
view of the results of the Child Labor Law in expanding the 
scope of the national police power have lost sight of the fact that 
any exercise of that power must be kept within due process of 
law. But, even if this were not the case, it should be borne in 
mind that a court which has expressed its contempt for those 
who show a tendency to push the application of constitutional 
principles to a "drily logical extreme" is not apt to permit itself 
to be browbeaten by the requirements of absolute consistency into 
upholding any law which is a manifestly ridiculous or dangerous 
application of even the most harmless principle. 

But if the Supreme Court had been willing to sustain the 
Child Labor Law on the basis of the argument advanced by its 
friends in its behalf, it is apparent that, while the national 
police power would have been strikingly enlarged, that expansion 
would not have been unlimited but would have been confined to 
well defined boundaries. Under this interpretation, the power 
of Congress to exclude Commodities from the channels of inter- 
state commerce could be used, not to strike at any evil which 
Congress might succeed by this method in bringing within its 
reach, but to strike at only those evils which could be said to be 
promoted by interstate commerce or motivated by the expecta- 
tion or necessity of enjoying the privileges of such commerce. 
Concretely, those evils would be those connected with the proc- 
esses of manufacturing the products destined for interstate 
markets. Congress would doubtless have gained the authority 
to regulate the conditions of labor in any industry dependent on 
interstate commerce for its markets, and this of course includes 
every industry of importance in the country; it is not clear that 
it would have gained much more. 

But if the scope of the national police power under the com- 
merce clause was not enlarged by the decision invalidating the 
Child Labor Law, neither was it narrowed. Congress still re- 
tains full authority to deal with any evil which threatens to 
injure, destroy, or obstruct interstate commerce. There still 
remains the authority to protect the national health, morals, 
safety, and general welfare from such evils as depend upon the 
physical agency of interstate commerce facilities for the trans- 
portation of commodities or persons. But evils which feed on 
interstate commerce only in the sense that they would dwindle 



THE NATIONAL POLICE POWER 483 

away if the right of those responsible for them to engage in 
interstate commerce were withdrawn are still beyond the reach of 
congressional power as conferred by the commerce clause. Con- 
gress may exercise a police power to protect interstate commerce, 
and to protect the nation from the actual misuse of that com- 
merce ; it may not, however, protect the nation from all the other 
equally dangerous and much more numerous evils which would 
die of discouragement if the interstate commerce they thrive on 
were prohibited. 



THE NATIONAL POLICE POWER 247 



THE NATIONAL POLICE POWER UNDER THE TAX- 
ING CLAUSE OF THE CONSTITUTION* 

When the United States Supreme Court decided in the sum- 
mer of 1918 that the Keating-Owen Act, 1 closing the channels 
of interstate commerce to the products of mines and factories 
employing child labor, was an attempt by Congress to exercise 
a power not confided to it by the constitution and was therefore 
null and void, 2 the child labor exterminators, in Congress and 
out, apparently undismayed, girt up their loins and sallied forth 
on what one of them aptly termed "a quest of constitutionality." 3 
There seemed to be no thought that Congress should abandon its 
efforts to prohibit child labor ; the problem merely resolved itself 
into one of method. One method had failed and another must 
be found. 4 Accordingly a rather astonishing variety of proposals 
was brought forward in the hope that an effective and at the 
same time constitutional federal child labor law might be evolved. 
Three resolutions were introduced proposing a child labor amend- 
ment to the national constitution. 5 Senator Owen demanded 
the reenactment of the Keating-Owen Act with an added pro- 
vision that no judge should have the power to declare it uncon- 
stitutional. 6 Also a bill embodying the principle of the Webb- 

*This article, though complete in itself, is a development of the topic 
of National Police Power under the Commerce Clause, 3 Minnesota 
Law Review 289, 381, 452. 

1 Act of September 1, 1916, Chap. 432. 39 Stat, at L. 675. . 

2 Hammer v. Dagenhart, (1918) 247 TJ." S. 251, 62 L. Ed. 1101, 38 S. 
C. R. 529. 

3 Title of an article by Raymond G. Fuller, in Child Labor Bulletin, 
Nov., 1918, Vol. 7, 207. 

4 Senator Lodge declared in the Senate debate on the Child Labor Tax 
(see infra note 10), "The main purpose is to put a stop, to what seems to 
be a very great evil and one that ought .to be in some way put a stop to. 
If we are unable to reach it constitutionally in any other way, then I am 
willing to reach it by the taxing power, which the courts have held can be 
used constitutionally for such a purpose. I see no other way to do it." 
Cong. Rec, Dec. 18, 1918, Vol. 57, 611. 

5 House Joint Resolution 300, introduced by Mr. Mason (111.), Cong. 
Rec, June 11, 1918, Vol. 56, 7652; House Joint Resolution 302, Mr. Rogers 
(Mass.)', ibid, 7776; House Joint Resolutions 304, Mr. Fall (Pa.), ibid, 
7776. • 

6 Cong. Rec, June 6, 1918, Vol. 56, 7418, Sen. bill 4671. Debated June 
6, 1918, ibid, 7431, 7435. 



248 MINNESOTA LAW REVIEW 

Kenyon Act was introduced, forbidding the shipment of the 
products of child labor into states which prohibit the employment 
of children. 7 Again it was proposed that the use of the mails 
be denied to the employers of children. 8 Still another bill relied 
upon the war power as a basis for a flat prohibition of child labor 
by declaring such a prohibition necessary for "conserving the 
man power of the nation and thereby more effectually providing 
for the national security and defense." 9 Finally, proposals were 
made to drive child labor out of existence by use of the federal 
power of taxation; and when the Revenue Act of February 24, 
1919, was passed, it contained provisions placing an excise tax 
of ten per cent upon the net profits of mining and manufacturing 
establishments employing children. 10 

Within three months of the enactment of this law it was 
declared unconstitutional by a federal district judge in North 
Carolina on the ground that it was an invasion of the domain of 

7 Sen. bill 4762, June 27, 1918, by Mr. Pomerene. Referred to Com- 
mittee on Interstate Commerce. Cong. Rec, Vol. 56, 8341. See comments 
in Survey, June 15, 1918, p. 324. 

8 Sen. bills 4732, 4760, June 27, 1918, by Mr. Kenyon. Referred to 
Committee on P. O. and P. Roads. Cong. Rec, Vol. 56, 8341. 

9 House bill 12767, Aug. 15, 1918, by Mr. Keating (Col.), Cong. Rec, 
Vol. 56, 9238. Text of this bill is reprinted in Child Labor Bulletin, Aug., 
1918, Vol. 7, 98. 

10 On June 27, 1918, Mr. Pomerene introduced a bill to tax the employ- 
ment of children (S. R. 4763) which was referred to Committee on Inter- 
state Commerce, Cong. Rec, Vol. 56, 8341. On. Nov. 15, 1918, he intro- 
duced a similar measure drafted in collaboration with Senators Kenyon 
and Lenroot as an amendment to the general revenue bill (H. R. 12863). 
This amendment was finally enacted. 

The pertinent part of the act as passed is the first section, Act of Feb. 
24, 1919, 40 Stat, at L. 1138. It reads as follows: "Every person (other than 
a bona fide boys' or girls' canning club recognized by the Agricultural 
Department of a State and of the United States) operating (a) any mine 
or quarry situated in the United States in which children under the age 
of sixteen years have been employed or permitted to work during any 
portion of the taxable year ; or (b) any mill, cannery, workshop, factory, 
or manufacturing establishment situated in the United States in which 
children under the age of fourteen years have been employed or per- 
mitted to work, or children between the ages of fourteen and sixteen 
have been employed or permitted to work more than eight hours in any 
day or more than six days in any week, or after the hour of seven o'clock 
post meridian, or before the hour of six o'clock ante meridian, during any 
portion of the taxable year, shall pay for each taxable year, in addition 
to all other taxes imposed by law, an excise tax equivalent to 10 per 
centum of the entire net profits received or accrued for such year from 
the sale or disposition of the product of such mine, quarry, mill, cannery, 
workshop, factory or manufacturing establishment." 

Other proposals for destroying child labor by taxation were made in 
Congress. Two bills (H. R. 12705, 13087) introduced by Mr. Green (la.) 
and Mr. Gard (Ohio) provided for the taxation of articles of interstate 
commerce in the manufacture of which child labor is employed. Cong. 
Rec, Vol. 56, 9051, 11310. It was proposed by Mr. Mason (111.) to levy 



THE NATIONAL POLICE POWER 249 

state authority. 11 At the time of the writing of this article an 
appeal from this decision is pending before the Supreme Court 
of the United States. 

It would seem that in no case could the question be more 
squarely raised whether there are any constitutional limitations 
upon the purposes for which Congress may use its power to tax. 
The friends of this law do not claim that it was designed for the 
purpose of raising revenue, or for any other purpose than the 
destruction of child labor. 12 If it should be held that this is a 
constitutional use of the taxing power it follows that there is 
stored up in the power to tax a most substantial fund of con- 
gressional authority to deal with social and economic problems, 
a police power more comprehensive and far-reaching in scope 
than can be derived from any other grant of power to Congress. 13 
It is the purpose of this article to examine the nature of such 
national police power as may be derived from the power to tax 
and to determine what are the limitations, if there be any, to 
which that power is subject. 

The Clause Granting the Power to Tax 
Congressional authority to tax is granted in the following 
words of the federal constitution: "The Congress shall have 
Power (1) To lay and collect Taxes, Duties, Imposts and Ex- 
cises, to pay the Debts and provide for the common Defense 
and general Welfare of the United States." 14 For what seems 
at first glance to be a perfectly straightforward and unambig- 
uous statement, this brief sentence has given rise to a surprising 
number of constitutional controversies of the very first magni- 
tude. These disputes have related to two entirely separate 

a tax of two dollars per day on all who employ children. Cong. Rec, 
Vol. 56, Appendix, 461. 

11 May 2, 1919. The decision was handed down by Judge James E. 
Boyd, who rendered the district court decision in Dagenhart v. Hammer, 
invalidating the Keating-Owen Act. No opinion was written and the facts 
set forth above are based on press reports. See New York Times, May 

12 With the possible exception of its author, Senator Pomerene, who 
insisted that the purpose of its enactment was two-fold, to raise revenue 
and to destroy child labor. He expressed the belief that it would produce 
some revenue. Cong. Rec, Dec. 18, 1918, Vol. 57, 613. 

13 See articles by the writer on National Police Power under the Com- 
merce Clause of the Constitution, (1919) 3 Minnesota Law Review, 
289, 381, 452; Judge Charles M. Hough, Covert Legislation and the Con- 
stitution, (1917) 30 Harvard Law Rev. 801; Paul Fuller Is There a 
National Police Power? (1904) 4 Col. Law Rev. 563. 

14 Art. I, sec. 8, cl. 1. 



250 MINNESOTA LAW REVIEW 

aspects of the taxing power. 15 In the first place, there has been 
bitter disagreement as to the purposes for which Congress is 
authorized to raise revenue. In other words, what may Con- 
gress legitimately do with the money raised by taxation? In 
respect to this question, which is not the one under considera- 
tion, we may merely note in passing that the following principles 
are now settled : First, the clause, "to pay the debts and provide 
for the common defense and general welfare of the United 
States," is not a separate grant of general legislative power, but 
is a statement of limitation indicating the purposes for which 
Congress may use the power to "lay and collect taxes, duties, 
imposts and excises." In short, Congress may lay and. collect 
taxes in order to pay the debts and provide for the common 
defense and general welfare. 16 Second, Congress is not limited 
in the purposes for which it may spend money raised by taxa- 
tion to such purposes as are covered by the legislative powers 
delegated to Congress by the constitution. It may spend money 
not only to aid in the exercise of those delegated powers but 
also for the more comprehensive and general objects of "pro- 
viding for the common defense and general welfare." 17 , 

15 Story, Commentaries on the Constitution, I, Sec. : 958. 

16 No,one has expressed this more clearly than Jefferson in his opinion 
on the power of Congress to establish the Bank of the United States: 
"To lay taxes to provide for the general welfare of the United States, 
that is to say, 'to levy taxes for the purpose of providing for the general 
welfare.' For the laying of taxes is the power, and the general welfare 
the purpose, for which the power is to be exercised. Congress are not to 
lay taxes ad libitum, for any purpose they please; but only to pay the 
debts, or provide for the welfare of the Union. In like manner they are 
not to do anything they please to provide for the general welfare, but 
only to lay taxes; for that purpose. To consider the latter phrase, not as 
describing the purpose of the first, but as giving a distinct and independent 
power to do any act'- they please, which might be for the good of the 
Union, would fender" alt the" preceding and subsequent enumerations of 
power completely useless" ^Jefferson's Correspondence, Vol. 4, 524, 525. 
On the same point see Story, op. cit., Sees. 907-930 ; Miller on the ; Con- 
stitution, 229 ; Hare American Constitutional Law, I, 241 ; Watson, Con- 
stitution, I, 390; Black, Constitutional Law, 207; Tucker, Constitution, 
I, 470; Federalist, No. 41. ■: A, ■■:■ 

Compare the opposite view of Chancellor Kent: "At -present it will.be 
sufficient to observe, generally, that Congress are authorized to provide 
for the common , defense and general welfare; and for that purpose, 
among other express grants, they are authorized to lay and' collect taxes, 
etc. . . ." Comrhe'ntaries, 13th Ed., I, 259. ; 

17 The classic argument in support of this position is that of President 
Monroe in his message accompanying his veto of the Cumberland . Road 
Bill. Richardson: Messages and Papers of the Presidents, II, i64-167; 
Hamilton's Report on Manufactures, Dec. 5, 1791, Works, Lodge Ed., Vol. 
4, 151. See also Story, op. cit. Sees. 975-991; Willoughby, op. cit., I, 588.. 
For opposite view see Tucker, op. cit, I, 475. 



THE NATIONAL POLICE POWER 251 

,■ The second group of controversies over the meaning of the 
taxing clause of the constitution has dealt, not with the question 
of the purposes for which revenue may legitimately be raised by 
taxation, but with the question whether or not Congress may 
use the power to tax for purposes which do not include the raising 
of any revenue at all, or include it only incidentally. For in- 
stance, may Congress tax solely, in order to promote industry, 
or to drive- out of existence practices or commodities injurious 
to the national welfare? It is clear that the scope and nature 
of any police power which Congress may enjoy under the taxing 
clause will depend upon the extent to which it may use its power 
to tax for purposes other than revenue. 

, The question of the purposes for which Congress may use the 
power to tax has been answered with different degrees of con- 
servatism. On the one hand are those who believe that this 
power may be legitimately used only for the raising of revenue. 
Midway, a more numerous group has urged that Congress may 
properly tax for revenue and in addition to accomplish or pro- 
mote any other legislative object within the enumerated powers. 
of Congress. Finally, the friends of the new child labor tax 
and measures like it allege that Congress may levy taxes for the 
purpose of regulating or controlling indirectly problems clearly 
outside of its delegated legislative authority, provided that such 
taxation has for its object providing for the common defense 
and general welfare of the nation. An examination of the merits 
of these three views in the light of the arguments advanced in 
their support will help materially in determining whether or not 
there is a national police power properly deducible from the con- 
gressional power to tax; and. if there is such a police power, 
what, if any, are its limits. 

Taxation for Revenue "Only 

The proposition that Congress may use its grant of taxing 
power only to raise revenue is ancient and familiar doctrine. It 
has served as an argument for ove^r— a— hundred— years to those 
who have denied the constitutionality of the protective tariff. 18 
To that end it was vigorously urged by Calhoun and his South 

18 For analysis of arguments for and against the constitutionality of 
protective tariffs, see passim Stanwood, Tariff Controversies in the United 
States in the Nineteenth Century. See also arguments on this point in 
Elliott's Debates, Vol. IV. Of course this is not the only argument 
urged against the validity of such tariffs. 



252 MINNESOTA LAW REVIEW 

Carolina adherents in 1829 during the critical period of the 
nullification controversy; 19 and it stood as a solemn pronuncia- 
mento in the party platform on which President Wilson was 
elected in 1912. 20 

It must not be assumed, however, that this view of the fed- 
eral taxing power is the sole property of the free trader. It 
is not even incompatible with a belief in the constitutional pro- 
priety of protection. Nor does it place one in the position of 
maintaining with an unyielding literalness that Congress may, 
under no circumstances, impose a money exaction or tax for 
a purpose other than revenue. The present day advocates of 
this theory usually recognize that Congress may levy a tax to 
make effective some other power delegated to Congress by the 
constitution, such as the power to regulate commerce or to 
control the currency. They insist, however, that in such cases 
Congress has exercised not its delegated taxing power but its 
commerce power or its currency power. In other words, the 
power of taxation granted by article I, section 8 of the constitu- 
tion is definitely limited to the laying of taxes for revenue only : 
but in addition to this expressly delegated and definitely limited 
power, there is derived from the other grants of congressional 
authority an implied power to levy money exactions which may 
be called taxes, so that a tax is constitutional which furthers any 
object within the scope of the delegated powers of Congress 
even though it is not levied by virtue of the taxing power spe- 
cifically granted in article 1, section 8. To overlook this impor- 
tant distinction puts the adherent of the "revenue only" theory 
in an entirely false position. 

This view that the power of taxation granted to Congress may 
constitutionally be used only for the purpose of raising revenue 
is supported by three main arguments which may be briefly 
reviewed. 21 

1. In its commonly accepted meaning as well as by legal 
definition, the term "taxation" is confined to the power of gov- 

« Works, VI, 1-59. 

20 The Democratic Platform in 1912 contained the following declara- 
tion : "We declare it to be a fundamental principle of the Democratic 
Party that the Federal Government under the Constitution has no right 
to impose or collect tariff duties except for the purposes of revenue. . . ." 
The Democratic Platform in 1892 contained a practically identical state- 
ment. 

21 For an excellent presentation of this whole .theory of federal tax- 
ation, see the valuable article by J. B. Waite, (1908) 6 Mich. Law Rev. 277. 



THE NATIONAL POLICE POWER 253 

ernments to raise revenue. All the English dictionaries concur 
in regarding the purpose of securing money as an inherent 
attribute of a tax. 22 The raising of revenue has been commonly 
recognized as the sine qua non of the taxing power. 23 This gen- 
eral impression of the layman and the lexicographer has been 
confirmed with definiteness and precision in the law, which has 
recognized and emphasized the distinction between money ex- 
actions for revenue purposes and money exactions imposed for 
purposes of regulation or destruction. Charges of the first class 
are based on the taxing power ; those of the second class upon the 
police power. Commentators 24 and courts 25 have again and again 
insisted upon the observance of this classification. The state gov- 
ernments possess, of course, a general police power for the pro- 
tection of public health, safety, morals and welfare. As a neces- 
sary and reasonable means of exercising this police power the 
state may levy what, for want of a better term, may be called 
taxes, which are prohibitive or repressive or regulatory in purpose 
and effect. In the legal and constitutional sense these taxes are 
to be regarded as police regulations, and not as exertions of the 
power of the state to tax. To prove this it is merely necessary to 
point out that these so-called "taxes" have been subjected to all the 
constitutional limitations resting upon the police power and when 
they have been imposed, in a manner or for a purpose which can- 
not be justified under the police power, the courts have not hesi- 

22 Webster defines a tax as ">a. rate or sum of money assessed on the 
person or property of a citizen by the government for the use of the 
nation or state." 

23 While admitting that the purpose to raise revenue is a common 
attribute of the taxing power, there are those who deny that it is an 
essential attribute. See infra 261, 265. 

24 "License fees, occupation taxes, inspection fees, and other like 
exactions, which are not imposed for the purpose of raising revenue, but 
for the proper regulation of matters deemed essential to the public safety, 
health, or welfare, are not 'taxes' in the ordinary and proper sense of 
that term, and are not governed by the constitutional rules and maxims 
applicable' to taxation, but by those which define and limit the exercise of 
the police power." Black, Constitutional Law, 3d Ed., 467; Cooley, Con- 
stitutional Limitations, 7th Ed. 283, n. 1. 709, n. 1, 713; Cooley on Taxa- 
tion 3d Ed II, 1125; Freund, Police Power, Sec. 25; McClain, Consti- 
tutional Law in the U. S., 133 ; 27 Amer. & Eng. Ency. of Law & Proc, 
578 ; 37 "Cyc." 707. 

zsGundling v. Chicago, (1900) 177 U. S. 183, 189, 20 S. C. R. 633, 44 
L. Ed. 725; Phillips v. Mobile, (1908) 208 U. S. 472, 478, 28 S. C. R. 370, 
52 L. Ed. 578; Reymann Brewing Co. v. Brister, (1900) 179 U. S. 445, 
45 L. Ed. 269, 21 S. C. R. 201 ; Pabst Brewing Co. v Crenshaw, (1904) 
198 U. S. 17. 49 L. Ed. 925, 25 S. C. R. 552; Tanner v. Little, (1916) 240 
U. S. 369, 60 L. Ed. 691, 36 S. C. R. 379. 



254 MINNESO TA LA W RE VIE W 

tated to declare them unconstitutional. 26 If, therefore, it should 
be admitted that the power of taxation belonging to Congress is 
exactly the same in nature and scope as that which the states en- 
joy, a proposition which has been vigorously urged, 27 it by no 
means follows that that power affords any basis for the exercise 
of a general federal police authority by means of regulatory and 
prohibitive taxation. When the state lays a tax for police 
purposes, it is exercising one of its admitted powers, the police 
power. No one will deny that Congress, also, may lay taxes as a 
means of carrying out its own granted powers. 28 But the use by 
the state of the power to lay taxes in aid of an admitted state 
power can furnish no authority for the exercise by Congress of 
the power to levy taxes in aid of powers clearly not granted to 
the national government. 

To regard the power of taxation as in its very nature limited 
to purposes of revenue is not to deny or discount the truth of 
Marshall's. famous dictum, "the power to tax is the power to de- 
stroy." 29 The two propositions, are entirely compatible. This oft- 
quoted maxim, instead of being regarded as a blanket authori- 
zation of the unrestrained use of the taxing power for any and 
all purposes irrespective of revenue, is more reasonably con- 
strued as an epigrammatic statement of the political and eco- 
nomic axiom that since the financial needs of a state or nation 
may outrun any human calculation,' so the power to meet those 
needs by taxation must not be limited even though the taxes 
become burdensome or confiscatory. 30 To say that "the power 

26 State v. Ashbrook, (1899) 154 Mo. 375, 55 S. W. 627, 48 L. R. A. 
265, 77 A. S. R. 765; Sperry and Hutchinson v. Owensboro, (1912) 151 
Ky. 389, 151 S. W. 932; Little v. Tanner, (1913) 208 Fed. 605 (over- 
ruled in 240 U. S. 369 on other grounds). Earlier cases are cited by 
Cooley, Taxation, II, 1140. 

27 See infra, p. 267. 
23 See infra, p. 261. 

29 McCulloch v. Maryland, (1819) 4 Wheat. (U.S.) 316, 431, 4 L. Ed. 
579; Weston v. City Council of Charleston, (1829) 2 Pet. 449, 7 L. Ed. 
481. It should be noted that this statement is jn . reality obiter dictum. 
What Marshall was proving was that a state could levyno tax whatever 
on an instrumentality of the federal government even thbugh the tax ' 
was neither burdensome nor destructive. See article by T. R. Powell, 
Indirect Encroachment on Federal Authority by the Taxing Powers of 
the States, (1918) 31 Harvard Law. Rev. 321. 

30 "The sense of the opinion is. that, as a sovereign state, governments 
may be pressed for money, each may take from its people a portion of 
their possessions ; that this right may be exercised again and again until 
the whole of the property has. been exhausted : In this sense there is a like 
right in the federal government to destroy." Waite, op. cit, 6 Mich. Law 
Rev. 292. 



THE NATIONAL POLICE POWER 

to tax is the power to destroy" is to describe not the purposes 
for which the taxing power may be used but the degree of vigor 
with which the power may be employed in order to raise rev- 

nue." 1 , . 

2 It is urged, in the second place, that the framers of the 
federal constitution intended to confer upon Congress the power 
to tax only for the purpose of raising revenue. 32 It is true that 
the clause granting this power contains language susceptible of 
a more liberal construction. It authorizes the levying of taxes 
"to pay the debts and provide for the common defense and gen- 
eral welfare of the United States." The power described by these 
words, however, is the power to tax for the purpose of securing 
the necessary money with which to pay the public debts and pro- 
vide for the common defense and general welfare. In other 
words "to provide for the common defense and general wel- 
fare" 'is a statement of the objects for which money raised by 
taxation may be spent rather than a statement of the objects for 
which the power to tax may be used irrespective of revenue. It 
is ur-ed that such meagre evidence as is available regarding the 
^. a ni,^^achedJoJhjsjkus e by those who framed it 3 '^ nd_by 

-iThU view finds support in Marshall's further comment on the doc- 

ToH <To„° .he'inSd'c/of'tfe constitueL J over their representatives, 
to guard them against its abu£» 4 Wheat (U S.) 3 16 «£ 
a„d a2 S e 'Laoor,''tl919) '1^—^ £». 101; Tucker, op. 

Cit "J'TlL%roblem of the purposes for which Congress was to be ^author 
• .A ti lav ta-ces evoked little discussion in the Convention of 1787. ine 
Vr^inii Plan asTntroduced by Randolph on May 29 contained no Sep 

cases to Which the separate states are incompetent, etc. . . . Farrand, 
^wtlon' ''of *e er Ne„ CO ic V r e s n ey pian introduced by Patterson on June 



256 MINNESOTA LAW REVIEW 

those who discussed it while ratification of the constitution was 
pending 34 tends to support the view here urged. The clause was 
placed in the constitution in order to remedy that serious defect of 
the articles of confederation arising from the inability of Congress 
to raise revenue directly. The new government must enjoy this 
power to raise revenue, and these were the words in which that 
power was conferred. 35 That the framers did not intend to give 
Congress a general police power to be exercised by means of 
destructive or regulatory taxation is evidenced by two more def- 
inite considerations. First, the fundamental principle on which the 
new national government was to rest was that of enumerated 
powers. Its founders desired it to deal with a definitely limited 
group of subjects and no others. They cannot therefore reason- 
ably be presumed to have intended to confer upon Congress, under 
the guise of the power to lay taxes, the power to deal with any 
problem of social or economic policy which might be indirectly 
affected or controlled by an ingenious use of the taxing power. 
Had they so intended, they would have swept away by this one 
specific grant of power most of those limitations upon the scope 
of federal authority which it was the purpose of the other spe- 

words, "for the payment of the debts and necessary expenses of the 
United States." Ibid, II, 366. Among the records of the Committee of 
Detail was found a proposal in Randolph's writing that Congress should 
have power "To raise money by taxation, unlimited as to sum, for the 
past or future debts and necessities of the union." Ibid, II, 142. 

On Aug. 25 a motion was lost to add to the clause granting Congress 
the power to tax the clause "for the payment of said debts and for the 
defraying the expenses that shall be incurred for the common defense 
and general welfare." Ibid, II, 408. 

34 The Federalist discusses the federal taxing power at length. See 
Nos. 30-36 inc. It nowhere suggests that the power could be used for 
purposes other than revenue. 

Sherman and Ellsworth in transmitting a copy of the new constitution 
to the governor of Connecticut, Sept. 26, 1787, wrote : "The objects for 
which Congress may apply monies, are the same mentioned in the eighth 
article of the confederation, viz. for the common defense and general wel- 
fare, and for the payment of the debts incurred for those purposes." 
Farrand, op. cit., Ill, 99. 

McHenry, member of the Convention of 1787 from Maryland, speaking 
on Nov. 29 before the Maryland House of Delegates, declared): "The 
power given to Congress to lay taxes contains nothing more than is com- 
prehended in the spirit of the eighth article of the Confederation." Ibid, 
III, 149. 

35 Art. VIII of the Articles of Confederation had provided that "All 
charges of war, and all other expenses that shall be incurred for the 
common cause or general welfare, . . . shall be defrayed out of a 
common treasury, which shall be supplied by the several States, in pro- 
portion to the value of all such land within each State, etc. . . ." It 
was the method of raising money, rather than the purposes of taxation 
which the framers of the Constitution sought to change. 



THE NATIONAL POLICE POWER 257 

cific grants of power to build up. 36 And secondly, had the f ram- 
ers of the constitution desired to have Congress enjoy that gen- 
erous police power which it has been urged it may exercise 
through the medium of taxation, is it probable that they would 
have limited Congress in the exercise of that police power to 
the inconvenient and indirect agency of taxation? Would they 
not rather have allowed a reasonable choice of method instead 
of saying, in effect, "you may exercise a police power, provided 
only you do it under the guise of taxation?" 37 

3. Finally, in every case in which the Supreme Court of the 
United States has been willing to recognize that Congress has 
levied taxes for purposes other than revenue, it has looked upon 
these taxes not as exercises by Congress of its granted power to 
tax, but as means employed for carrying out other delegated 
congressional powers. And this view has been shared by dis- 
tinguished legal commentators. In other words, the cases com- 
monly cited to prove that the delegated power of taxation may 
be used for purposes of regulation and destruction prove nothing 
more in fact than that the power of Congress to lay taxes may 
be an implied power derived from other congressional powers, or 
that Congress may lay taxes as a necessary and proper means of 
carrying out its other granted powers. 

This is, in the first place, the constitutional justification of 
the prohibitive tariff. While there is no decision of the Supreme 
Court squarely upon this point, the weight of authority leans to 
the view that a prohibitive tariff is not an exercise of the taxing 
power at all,, but should rather be classified as a regulation of 
commerce. 38 In cases where a tari ff is levied not only to raise 

36 Tucker writes : "It is surprising how this sophistical device has 
been upheld by learned commentators, for it is obvious that, by such con- 
struction of the Constitution, Congress may range with no limit but its 
discretion through the realms of reserved and ungranted powers by means 
of a clause to tax ad libitum and appropriate at will the money of the 
people to the promotion of anything through other agencies than its own 
and to the accomplishment of anything it may deem to be for the com- 
mon defense and general welfare; for this, in effect, is worse than it 
the words 'to provide for the common defense and general welfare 
were held to grant the unlimited power claimed, as it incites to profuse 
expenditure and excessive taxation as the only avenue to the unlimited 
usurpation of ungranted powers." Op. cit., I, 484. See also Bruce, op. 
cit., 3 Minnesota Law Review 101-103. 

37 Waite, op. cit., 6 Mich. Law Review 285. 

38 The authority most frequently cited is Cooley who writes : Consti- 
tutionally a tax can have no other basis than the raising of a revenue for 
public purposes, and whatever governmental exaction has not this basis is 
tvrannical and unlawful. A tax on imports, therefore, the purpose of 
which is, not to raise a revenue, but to discourage and indirectly prohibit 



258 MINNESOTA LAW REVIEW 

revenue but also for the protection of home industry, it may be 
regarded as an exercise of both the taxing and the commerce 
powers. 39 Even Story, who repudiates the doctrine of taxation 
'for revenue only, regards the protective tariff as a means of 
regulating foreign commerce; 40 and his view would probably be 
followed by any court before which the issue could be raised. 

In the second place, Congress has laid destructive taxes as a 
means of regulating the currency. In 1866, shortly after the es- 
tablishment of the national banking system, Congress laid a pro- 
hibitive tax of ten per cent upon state bank notes in order to pro- 
tect the notes of the new national banks from their competition. 41 
The Supreme Court of the United States upheld the constitu- 
tionality of this tax in the case of Veasie Bank vs. Fenno, de- 
cided in 1869- 42 Counsel for the bank urged upon the court that 
the tax was invalid because it was so excessive as to indicate a 
purpose on the part of Congress to destroy the thing taxed rather 
than to raise revenue. The court replied : 

"The first answer, to this is that the. judicial cannot prescribe 
to the legislative department of the government limitations upon 
the exercise of its acknowledged powers. The power to tax may 
be exercised oppressively upon persons, but the responsibility 
of the legislature is not to the courts but to the people by whom 
its members are elected. So if a particular tax bears heavily 
upon a corporation, or a class of corporations, it cannot, for that 
reason only, be pronounced contrary to the constitution." 

some particular import for the benefit of some home manufacture, may 
well be questioned as being merely colorable, and therefore 'not warranted 
by constitutional principles. But if any income is derived from the levy, 
the fact that incidental protection is given to home industry can be no 
objection to it, for all taxes must be laid with some regard to their effect 
upon the prosperity of the people and the welfare of the country, arid 
their validity cannot be determined by the money returns. . . . And 
perhaps even prohibitory duties may be defended as a regulation of com- 
mercial intercourse." Principles of Constitutional Law, 3d Ed., 58. See 
also Hall, Constitutional Law, 181 ; Watson on Constitution, I, 485 n. s. ; 
Willoughby, op. cit., I, 607. See contra Pomeroy's statement: "A pro- 
tective tariff is certainly not indispensable to the execution of the power 
to lay taxes ; but it is so certainly one of the methods of exercising that 
power." Constitutional Law, 217. 

39 "The protective tariff laws are measures properly enacted 1 under 
the express power to raise revenue and to regulate foreign commerce." 
McClain, op. cit., 88. 

40 Op. cit., Sees. 1084-1094. But note that Story also regards it as 
proper to base protective tariffs on the taxing clause, ibid, Sees. 962-965. 
He says, however, that the commerce power is the one from which the 
right to enact such tariffs "is more usually derived." Ibid, Sec. 763. 

4i Act of July 13, 1866, 14 Stat, at L. 146. 
42 (1869) 8 Wall. (U. S.) 533, 19 L. Ed. 482. 



THE NATIONAL POLICE POWER 259 

It then went on to say that : 

"Under the constitution the power to provide a circulation 
of coin is given to Congress . . . .Having thus, in the exer- 
cise of undisputed constitutional powers, undertaken to provide 
a currency for the whole country, it cannot be questioned that 
Congress may, constitutionally, secure the benefit of it to the 
people by appropriate legislation. To this end, Congress has 
denied the quality of legal tender to foreign coins, and has pro- 
vided by law against the imposition of counterfeit and base coin 
on the community. To the same end, Congress may restrain, 
by suitable enactments, the circulation as money of any notes not 
issued under its own authority. Without this power, indeed, its 
attempts to secure a sound and uniform currency for the country 
must be futile. Viewed in this light, as well as in the other light 
of a duty on contracts or property, we cannot doubt the consti- 
tutionality of the tax under consideration." 

The first of the paragraphs quoted has frequently been cited 
as authority for the statement that Congress can tax to an un- 
limited degree for any purpose it chooses, irrespective of reve- 
nue and without fear of judicial interference. 43 While it is hard 
to see in the passage much more than a statement of the perfectly 
obvious doctrine that a tax, otherwise legal, cannot be held 
void because a court thinks it is too high, it must be admitted 
that it does indicate an opinion on the part of the court that the 
power which is being exercised is the taxing power. Since the 
power is quite obviously not being employed to raise revenue, 
such a view conflicts with the theory of taxation for revenue 
only which now is under consideration. But whatever comfort 
those who contend for a federal police power through taxation 
may derive from this statement will be minimized if not de- 
stroyed by the second of the paragraphs quoted, wherein it is 
plainly stated that this destructive tax is merely a convenient 
method of protecting the national currency. As a matter of 
fact, the Supreme Court in subsequent decisions 44 as well as 

43 This is apparent from a scrutiny of the debates in Congress upon 
any of the regulatory or destructive taxes which have been passed. See 
infra, p.. 266. 

44 Miller, J. in The Head Money Cases said : "In the case of Veazie 
Bank v. Fenno, the enormous tax of eight per cent [it was in fact ten 
per cent] per annum on the circulation of state banks, which was de- 
signed, and did have the effect to drive all such circulation out of ex- 
istence, and was upheld because it was a means properly adopted by Con- 
gress to protect the currency which it had created ; na'mely the legal ten- 
der notes and the notes 'of the national banks. It was not subject, 
therefore, to the rules which would invalidate an ordinary tax pure and 
simple." (1884) 112 U. S. 580, 596, 5 S. C. R. 247, 28 L. Ed. 798. In 
National Bank v. U. S., (1879) 101 U. S. 1, 6, 25 L. Ed. 979, the court 



260 MINNESOTA LAW REVIEW 

numerous text writers 45 and other authorities 46 have with prac- 
tical unanimity regarded the Veazle Bank case in this light and 
leaned to the opinion that the constitutional basis for the levy im- 
posed by the act of 1866 was the currency power and not the 
taxing power. 47 

In one or two other cases of less importance the Supreme 
Court has recognized the distinction between levies made under 
the taxing power and those made under other granted powers of 
Congress. In the Head Money Cases* 8 involving the validity of 
a duty of fifty cents for every alien immigrant brought by vessel 
into the United States, the court met such objections to the law 
as rested upon its alleged non-conformity to the constitutional re- 
quirements regarding federal taxation by declaring that "the true 
answer to all these objections is that the power exercised in this 

commented on the Act of July 13, 1866, as follows : "The tax is on the 
notes paid out, that is, made use of as a circulating medium. Such a 
use is against the policy of the United States. Therefore the banker 
who helps to keep up the use of paying them out, that is, employing them 
as the equivalent of money in discharging his obligations, is taxed for 
what he does. The tax was no doubt intended to destroy the use; but 
that, as has just been seen, Congress had the power to do." Flint v. 
Stone Tracy Co., (1911) 220 U. S. 107, 31 S. C. R. 342, 55 L. Ed. 389, 
Ann. Cas. 1912B 1312. 

45 Hall, op. cit, 311; Hare, op. cit, I. 269; McClain, op. cit., 133; 
Willoughby, op. cit., I, 580. 

46 Senator Hoar declared in the Senate in 1902 (in discussing the 
oleomargarine tax passed in that year), "We had no right to suppress 
the state banks in the time of war merely because the wildcat bank was 
an evil, it being confined to state business and authorized by state power; 
but when we established a national currency we had a right by any 
method of constitutional action to protect that national currency against 
the competition or rivalry of any other. Therefore we had the right to 
tax out of existence the currency of the state banks, just as we should 
have had the right to pass a law directly that no state bank should issue 
currency in competition with ours." Cong. Rec, Mar. 26, 1902, Vol. 
35, 3280. 

47 Those who adhere to the second and third of the three general 
views of the scope of the federal taxing power place a different interpre- 
tation on the Veazie Bank Case. There is eminent authority holding the 
power therein discussed to be the taxing power. See Cooley, Constitu- 
tional Limitations, 681, n. 685; Cooley, Principles of Constitutional Law, 
58 ; Pomeroy, op. cit., 233. See also dissenting opinion of Holmes, J. in 
Hammer v. Dagenhart, (1918) 247 U. S. 251, 277, 62 L. Ed. 1101, 38 
S. C. R. 529. Senator Spooner declared in the Senate in 1902 that the 
tax of 1866 did not rest on the. currency power but that it was upheld 
"not because it was required in aid of another power, but because under 
the plain language of Sec. 8, it [Congress] had the power to do it." 
Cong. Rec, Apr. 1, 1902, Vol. 35, 3506. 

48 (1884) 112 U. S. 580, 5 S. C. R. 247, 28 L. Ed. 798. The court used 
these words : "If this is an expedient regulation of commerce by Con- 
gress, and the end to be attained is one falling within the power, the act 
is not void, because, with a loose and more extended sense than was used 
in the constitution, it is called a tax." Ibid, p. 596. 



THE NATIONAL POLICE POWER 261 

instance is not the taxing power. The burden imposed on the 
ship owner by this statute is the mere incident of the regulation 
of commerce." Thus the requirement that a stamp be placed on 
goods intended for export in order to prevent fraud is not levy- 
ing a tax even though a charge is made for the stamp. 49 But if 
the charge is made for purposes of revenue rather than regula- 
tion it becomes a tax. 50 

Use of Taxing Power Not for Revenue But in Furtherance 
of Delegated Congressional Authority 

The second view of the real scope of the federal taxing 
power may be regarded as middle ground between the revenue 
only doctrine just discussed and the theory that the power may 
be used for general police purposes. This second position ad- 
mits the propriety of using the power of taxation for purposes 
other than revenue, but not for all such purposes. Its adherents 
claim that the grant of taxing power may be exercised for pur- 
poses of revenue plus any other purposes lying within the scope 
of delegated congressional authority. It has been seen that those 
who defend the revenue only theory are under the necessity of 
maintaining that when taxes are laid by Congress in order to 
regulate commerce or protect the currency, those taxes must be 
viewed constitutionally not as expressions of the granted power 
of taxation but rather as expressions of the power to regulate 
commerce or the currency respectively. The constitutional basis 
for such taxes is not the power of taxation at all but the partic- 
ular power in aid of which the taxes are laid. Those who hold 
the second view, now being analyzed, maintain that taxes laid 
in order to help regulate commerce are exercises of the granted 
power of taxation and that it is quite proper to employ the taxing 
power as a means of supplementing and supporting any other 
granted power of Congress. Having thus admitted that the power 
of taxation itself, not as an implied power but as a granted power, 
may be used for purposes other than the raising of revenue, it is 
necessary to defend the position that there are still definite lim- 
its upon its scope. It is necessary to show why, from a consti- 
tutional viewpoint, the power of taxation may be used to regulate 
commerce or the national currency but not to regulate such mat- 



«Pace v. Burgess, (1875) 92 U. S. 372, 23 L. Ed. 657. 

s° Almy v. California, (1860) 24 How. (U. S.) 169, 16 L. Ed. 655. 



262 MINNESOTA LAW REVIEW 

ters as child labor, lotteries, 51 or political campaign contri- 
butions. 52 

The argument in support of this position may be summarized 
as follows : The powers of Congress are enumerated and delegat- 
ed. The grants of power to Congress taken together were clearly- 
intended to constitute the sum total not only of the powers confided 
to that body but also of the legislative objects about which or in 
furtherance of which Congress might exercise those powers. In 
short, the various delegations of power must be regarded not 
merely as legislative instruments placed in the hands of Congress 
to be used for any or all purposes ; they must be regarded also 
as the ends, objects, or purposes for which Congress may exercise 
legislative power. This, it is stated, is what Marshall had in 
mind when he said, "Let the end be legitimate, let it be within 
the scope of the constitution, and all means which are appro- 
priate, etc. . . . are constitutional;" 53 and when in the same 
case, he declared, "Should Congress, under the pretext of exe- 
cuting its powers, pass laws for the accomplishment of objects 
not entrusted to the government, it would become the painful duty 
of this tribunal, should a case requiring such a decision come 
before it, to say that such an act was not the law of the land." 54 
It follows, therefore, that when Congress attempts, through the 

51 A destructive tax on lotteries was urged upon Congress with great 
vigor. See remarks of Senator White (now Chief Justice) of Louisiana 
upon the propriety of this legislation : "When my people were clamoring 
for its suppression and crowding upon me petitions to introduce a bill 
suppressing the Louisiana Lottery by the exercise of the power of fed- 
eral taxation, I said to them, 'Great as is this evil, there is an evil yet 
greater, and that is the disruption and the destruction of all the great 
principles of our government by calling upon the Federal Government to 
do an illegal and unconstiutional thing. . . .' I declined to introduce 
a bill taxing the Louisiana Lottery by the Federal Government because 
I thought it violated the Federal Constitution." Cong. Rec, July 21, 
1892, Vol. 23, 6519. Such bills were, however, introduced. Compare with 
this the view of Judge Cooley, set forth in an article advocating such a 
tax, infra, note 81. 

52 Senator Thomas (Col.) introduced an amendment to the war rev- 
enue bill of 1919, providing for a tax of 100% on any campaign contri- 
bution in excess of- $500 in any primary or election campaign for the 
nomination or election of presidential electors, senators, or members 
of the House. Gong. Fee, Oct. 10, 1918, Vol. 56, 11169. The amendment 
was defeated. 

5 3 McCulloch v. Maryland, (1819) 4 Wheat. (U. S.) 316, 421, 4 L. 
Ed. 579. 

54 Ibid, p. 423. For an analysis of this argument see Tucker, op. cit, 
I ; Green, The Child Labor Law and the Constitution, 111. Law Bull., April, 
1917, 16. Compare Marshall's statement, "Congress is not empowered 
to tax for purposes which are within the exclusive province of the state." 
Gibbons v. Ogden, (1824) 9 Wheat. 1, 199, 6 L. Ed. 23. 

See also Kent, Commentaries, 13th Ed. I 279. 



THE NATIONAL POLICE POWER 263 

instrumentality of a granted power such as that of taxation, to 
regulate or control a subject matter nowhere confided to its au- 
thority by virtue of any delegation of power, such as the subject 
of child labor, it has exceeded its powers, usurped the reserved 
authority of the states, and violated the tenth amendment. 55 

This same doctrine may be put in slightly different form by 
saying that in exercising the powers delegated to it by the consti- 
tution Congress must be regarded as exercising them under the 
implied limitation that they shall be employed only for the ob- 
jects or ends confided by the constitution to congressional author- 
ity. The taxing power has long since been held subject to two 
other implied limitations, the binding force of which there is 
no disposition to question : one is the limitation of public purpose 
in respect to the use of the money raised by taxation ; 56 the other 
is the limitation implied from the essential nature of our federal 

55 This doctrine has been accepted by the supreme court of the Com- 
monwealth of Australia. In King v. Barger, (1908) 6 Com. L. R. 41 a 
federal tax on articles manufactured in the states, dependent upon the 
rate of wages paid and designed to control such wage rate, was held 
to be invalid on the ground that the federal government had no authority 
to control wages in the states. The following excerpts indicate the main 
features of the reasoning of the court : 

Higgins, J., "This act is not a taxing act. This is quite a novel form 
of legislation, and, if held to be valid, will give to the Commonwealth 
Parliament complete control over everything which was intended to be 
reserved to the states. Under the guise of a taxing act with exemptions, 
the Commonwealth Parliament could control the whole of the business 
and social relations of the people of the Commonwealth, and the pro- 
visions of the constitution, intended to reserve to the states the right of 
managing their internal affairs, would be worthless. (P. 47) . . . 
The Commonwealth Parliament can tax any person and any thing; and 
it can divide persons and things into classes for the purpose of taxation. 
But the moment the particular discrimen for distinguishing between one 
class and another in itself involves a regulation of conduct which is 
within the exclusive power of the state legislature, the Commonwealth 
legislation is invalid." (P. 52.) 

Isaacs, C. J., "The power of taxation granted to the Commonwealth 
Parliament does not authorize the impairment of the power reserved to 
the states to regulate wages." (P. 49.) Par. 107 Ch. V of the Com- 
monwealth of Australia Constitution Act reads: "Every power of the 
Parliament of a colony which has become or becomes a state, shall, un- 
less it is by this Constitution exclusively vested in the Parliament of the 
Commonwealth or withdrawn from the Parliament of the state, con- 
tinue as at the establishment of the Commonwealth, or as at the admis- 
sion or establishment of the state, as the case may be." 

Compare also the last clause in the following sentence from the 
Veazie Bank case, supra : "It would undoubtedly be an abuse of the power 
[of taxation] if so exercised as to impair the separate existence and 
independent self government of the states, or if exercised for ends in- 
consistent with the limited grants of power in the constitution." P. 451. 
See Tucker, op. cit., I, 373. . 

se Loan Association v. Topeka, (1875) 20 Wall. (U.S.) 655, L.Ed. 
455. This case involved the taxing power of the states but the principles 



264 MINNESOTA LAW REVIEW 

system which forbids Congress to tax the governments, agencies, 
or functions of the state. 57 It is urged that the taxation by Con- 
gress of the salary of a state judge is no more subversive of the 
fundamental principles of our constitutional system than the 
use by Congress of its taxing power to destroy child labor within 
the states. 5S For to what purpose did the framers of the consti- 
tution reserve certain subjects to the exclusive jurisdiction of 
the states if Congress, under the guise of an exercise of the 
power to tax, may step in and control those subjects? To admit 
the power to tax on the part of Congress for any and all pur- 
poses would "abrogate and destroy every limitation found in the 
constitution and every reservation in favor of the states." 59 

It is interesting to note that the present Chief Justice of the 
United States seems to share the view now under consideration. 
Mr. White was United States senator from Louisiana at the time 
a destructive tax upon cotton and grain futures was being de- 
bated in Congress in 1892. 60 At that time he expressed himself 
vigorously and at length upon the constitutionality of the pro- 
posed tax, taking the position that such "subterf ugeous and cheat- 
ing" use of the taxing power was clearly outside the constitu- 
tional authority of Congress. He took occasion in the course of 
his argument to draw the distinction between the use of regu- 
latory or destructive taxation in aid of the exercise of delegated 
congressional power and its use for purposes not so delegated. 

"In other words, I contend," he declared, "that where power 
to destroy exists, the use of a wrong instrumentality to do the 
destruction, may be the abuse of an instrumentality but not an 
abuse of power, because the power to destroy is vested. But 
where the power to destroy does not exist, the use of an instru- 
mentality to destroy that which there is no power to destroy is 

involved are applicable with equal force to the federal taxing power. It 
should be noted that the limitation of public purpose does not rest on 
the due process of law clause as has been sometimes assumed. 

s^ Collector v. Day. (1871) 11 Wall (U. S.) 113, 20 L. Ed. 122; Fifield 
v. Close, (1867) IS Mich. 505. 

58 "The principle is equally applicable to a case where the court can see 
that a power of government is called into play not for its professed 
object but solely for the purpose of defeating rights that cannot be de- 
stroyed consistently with any other of the principles upon which the con- 
stitution rests, but there is no. principle more fundamental than the prin- 
ciple in fulfillment of which the national government was created of 
circumscribed powers, each conferred for the accomplishment of a speci- 
fied object, purpose or end." Green, ©p. cit., 111. Law Bull., April, 1917, 26. 

R9 Remarks of Senator White, Cong. Rec, July 21, 1892, Vol. 23, 6516. 

60 The question of the constitutionality of this bill was discussed at 
great length. Senator White's long speech against the bill is found in 
Cong. Rec, July 21, 1892, Vol. 23, 6513-6520. The bill was defeated. 



THE NATIONAL POLICE POWER 265 

not alone an abuse of the instrumentality but a usurpation of 
power itself." 61 

And in commenting upon the Veazic Bank case, he went on 
to state that according to that decision the destructive tax on 
state bank notes could be regarded as either a prohibition or a tax. 
If it be viewed as a prohibition, then it is merely an exercise of 
the admitted power of Congress over the currency. If it be 
viewed as a tax, it is not unconstitutional, "because Congress had 
the power to use the taxing power to prohibit that which it had 
the right to prohibit under another provision of the constitution." 
But he was emphatic in his belief that this affords no precedent 
for the use of the power to tax for purposes not confided to con- 
gressional authority. 62 

Destructive or Regulatory Taxation for Police Purposes 
Outside the Scope of Delegated Congressional Authority 

It is clear that Congress has not acceded to either of the views 
thus far presented. It has regarded the purposes for which it may 
use its power to tax as limited neither to the raising of revenue nor 
to the furtherance of objects within its delegated authority. It has 
legislated more than once upon the theory that the power to tax 
is available as a means or instrument for accomplishing any pur- 
pose which will further the national welfare and that Congress 
may regulate or destroy by taxation things over which it plainly 
has no direct authority. Such legislation may be briefly reviewed. 

1. Instances of Federal Taxation for General Police Pur- 
poses.™ In 1886 it was proposed to levy an excise tax of ten 
cents per pound upon all oleomargarine manufactured in the 

6i Ibid, 6517. 

62 Ibid, 6517. He further pointed out that the power to lay a pro- 
hibitive tariff did not furnish a precedent for the tax under discussion. 
To argue that it does, ''overlooks the clear distinction between the nature, 
of the taxing power lodged in the federal government for the purpose of 
imposts and the nature of the taxing power lodged in the federal gov- 
ernment for the purpose of internal taxation. . . . When the federal 
government deals with imposts the constitution has vested in it the power 
which would be vested in any government in that regard. . . . No 
power as to imposts was reserved in the states by the federal constitution. 
All the lawful powers of government which could be exercised in that 
particular passed into the life and being of the federal government by 
the lodgment in that government of the power to levy imposts — imposts 
deal externally beyond our borders. Beyond those borders the power of 
the federal government was restricted and restrained by no limitation 
resulting from a reservation in the constitution." Ibid, 6516. 

63 No attempt has here been made to search out all the cases in which 
Congress has laid taxes" for purposes of regulation. Only- those are here 
treated regarding which there has been sharp controversy on the point 
of constitutionality. 



266 MINNESOTA LAW REVIEW 

United States. After considerable debate in both houses of 
Congress, the tax was reduced to two cents per pound, a rate 
so low as to preclude the tax from being classed as destructive 
in character. 64 In 1902, however, a tax of ten cents per pound 
was placed upon all oleomargarine colored to look like butter; 65 
and this tax has accomplished the purpose for which it was ad- 
mittedly imposed, the destruction of the business of manufac- 
turing colored oleomargarine. In 1892 it was proposed in Con- 
gress to place a license tax of $1000 upon all brokers or dealers 
engaged in the selling of cotton or grain on future contracts or 
options and a tax of five cents per pound or twenty cents per 
bushel upon all products so sold. 66 This tax did not become law, 
but in 1914 Congress did impose a tax of two cents per pound upon 
all cotton sold on future contracts. 67 In 1890 a tax of ten dollars 
was imposed upon the sale of smoking opium. 68 In 1914 this tax 
was raised to $300 per pound. 69 In 1912 Congress drove out of 
existence the manufacture of matches made from poisonous phos- 
phorus by subjecting these matches to the crushing tax of two 
cents per hundred. 70 Finally, as has been already stated, Con- 
gress has placed a tax of ten per cent upon the net profits of es- 
tablishments employing children. 71 

An examination of the congressional debates on these mea- 
sures makes perfectly clear that Congress was not trying to 
raise revenue but was trying to exercise police power in matters 
outside the scope of its delegated authority. The oleomargarine 
taxes were openly defended upon the ground that the legitimate 
dairy interests of the country must be protected against the de- 
structive competition of a product alleged to be not only inferior 
but positively dangerous to health. 72 The taxes on options or sales 
on future contracts were urged as necessary restraints on corn- 
er Act of Aug. 2, 1886, 24 Stat, at L. 209. 
es Act of 1902, 32 Stat, at L. 193. 

66 The text of this proposed measure is printed in the Cong. Rec, 
July 21, 1892, Vol. 23, 6514. 

67 Act of Aug. 18, 1914, 38 Stat, at L. 693. This was declared uncon- 
stitutional by a United States district court because, being a revenue 
measure, it originated in the Senate rather than in the House of Repre- 
sentatives as required by art. I, sec 7, cl. 1 of the constitution. Hubbard v. 
Lowe, (1915) 226 Fed. 135. It was re-enacted as Act of Aug. 11, 1916, 
39 Stat, at L. 476. 

es Act of Oct. 1, 1890, 26 Stat, at L. 5670. 

69 Act of Jan. 17, 1914. 38 Stat, at L. 277. 

70 Act of April 9, 1912, 37 Stat, at L. 81. The constitutionality of this 
act has never been passed upon by any court. 

71 Supra, note 10. 

72 See debates on H. R. 9206, Index to Cong. Rec, Vol 35. 



THE NATIONAL POLICE POWER 267 

mercial gambling. 73 When the tax on white phosphorus matches 
was being discussed in the Senate in 1912, Senator Lodge, who 
was sponsoring the bill, declared without hesitation, "The real 
purpose of the bill is to destroy an industry that ought to be 
destroyed." 74 He was equally frank as to the purpose of the 
recent child labor tax, as were most of the other friends of the 
bill. 75 In fact, the debates on this measure show that the Senate 
Committee on Finance, in estimating the revenue expected from 
the various taxes included in the Revenue Act of 1919, placed 
no estimate opposite the child labor tax, indicating that they did 
not expect any revenue to flow from it into a sadly depleted 
treasury. 76 

2. Argument in Support of This Theory. In order to show 
that Congress enjoys the broad power of taxation for police pur- 
poses it is necessary at the outset to dispose of the revenue only 
theory already discussed. 77 There are two steps in this process 
of refutation. It is pointed out, first, that the power of taxation 
granted to Congress is no different in character and no more 
limited, save as to the specific requirements of apportionment 
and uniformity and the specific prohibition against export taxes, 
than is the power of taxation possessed by the states of the 
union or by any other sovereign government. As Senator Ed- 
munds expressed it in the debate on the oleomargarine tax stat- 
ute of 1886, "the taxing power of the United States is just as 
extensive, just as supreme, just as illimitable as the taxing power 
of every state is." 78 Gray states this position even more strik- 
ingly in the following passage commenting upon the intentions 
of the f ramers of the federal constitution : 

73 See debates on Senate bill 110; Index to Cong. Rec, Vol. 51. 

74 Cong. Rec, April 3, 1912, Vol. 4235. In regard to the same bill 
Mr. Longworth (Ohio) declared in the House, "It is the purpose of the 
bill to destroy it [the poisonous match industry] and that is the reasow 
I am for the bill, because I want it stamped out." Ibid, 3973. 

75 Supra, notes 4 and 12. 

76 In response to a question on this point. Senator Simmons, chair- 
man of the Committee on Finance, stated : "I can only say to the Senator 
that I do mot think there was an estimate made as to the amount of rev- 
enue that would be raised by it . . . and I do not think any one 
suggested that any would be derived." Cong. Rec, Vol. 57, 612. It is 
interesting to compare this with the argument of Mr. Miller Outcalt 
for the plaintiff in error in the McCray case : "It is not out of place to ad- 
vert to an overflowing treasury, and the expediency which this same Con- 
gress felt in reducing the revenue derived under the Spanish War Acts, 
in this same year, by an amount equal to $70,000,000. The law was avow- 
edly not a revenue measure but a police regulation." 43 L. Ed. 78, 80. 

77 Supra, p. 251. 

78 Cong. Rec, July 19, 1886, Vol. 17, 7139. 



268 MINNESOTA LAW REVIEW 

"The example of a strong- general government which they had 
in mind, and the only one with which most of them were familiar, 
was the government of Great Britain. The powers of that gov- 
ernment were well known to them, its machinery had been cop- 
ied in most of the states. In view of these facts it may be gen- 
erally stated that in their bestowal of powers on the general gov- 
ernment and in their restriction of those powers (particularly of 
taxing powers, since dispute as to taxation was one of the chief 
causes of the Revolution) they intended: 

"1. To grant to the general government those powers usually 
exercised by the government of Great Britain, and in matters of 
taxation to grant the same general authority of classification and 
selection as was possessed by the British government and by the 
state governments modeled upon it. 

"2. To restrict those powers thus granted in such a way as 
to prevent discrimination among the states." 79 

In short, unless state governments and the governments of 
sovereign nations generally at the time of the formation of our 
national government were limited in the use of their taxing pow- 
ers to the raising of revenue, there is no reason to assume that 
the taxing power granted to Congress was so limited. 

This raises the question, in the second place, whether the 
power of taxation enjoyed by sovereign governments at this 
period was thus limited to the raising of revenue. On this 
point there can be no clearer or more definite statement than 
that of Story's : 

"Nothing is more clear, from the history of commercial na- 
tions, than the fact that the taxing power is often, very often 
applied for other purposes than revenue. It is often applied as 
a regulation of commerce. It is often applied as a virtual pro- 
hibition upon the importation of particular articles, for the en- 
couragement and protection of domestic products, and industry; 
for the support of agriculture, commerce and manufactures, for 
retaliation upon foreign monopolies and injurious restrictions ; 
for purposes of state policy and domestic economy; sometimes 
to banish a noxious article of consumption; sometimes, as a 
bounty upon an infant manufacture, or agricultural product; 
sometimes, as a temporary restraint of trade ; sometimes, as a 
suppression of particular employments; sometimes, as a prerog- 
ative power to destroy competition and secure a monopoly to 
the government. 

"If, then, the power to lay taxes, being general, may embrace, 
and in the practice of nations does embrace, all these objects, 
either separately or in combination, upon what foundation does 
the argument rest which assu mes one object only, to the exclu- 

79 Limitations of the Taxing Power, p. 350. 



THE NATIONAL POLICE POWER 269 

sion of all the rest, which insists, in effect, that because revenue 
may be one object, therefore it is the sole object of the 
power . . . ?" 80 

Among the eminent authorities who have agreed with this 
view may be mentioned Judge Cooley, who, in 1892, in urging 
Congress to place a destructive tax on lotteries, declared, "Rev- 
enue is not and has never been the sole object of taxation." 81 

In the third place, it should be noted that the constitutional 
clause granting the power of taxation seems to repudiate the 
revenue only doctrine. By the plain words of that clause, Con- 
gress enjoys the power to "lay taxes, to pay the public debts 
and provide for the common defense and general welfare." Now, 
as Story pertinently inquires : 

"If the common defense or general welfare can be promoted 
by laying taxes in any other manner than for revenue, who is 
at liberty to say that Congress cannot constitutionally exercise 
the power for such a purpose? No one has a right to say that 
the common defense and general welfare can never be promoted 
by laying taxes, except for revenue. No one has ever yet been 
bold enough to assert such a proposition." 82 

That Hamilton placed a similar broad construction upon this 
clause is evidenced by the fact that he defended the constitu- 
tionality of the protective tariff as an exercise of the congres- 

s° Commentaries, Sec. I, 965, 966. For analysis in this respect of 
the taxes imposed by England to which the American colonists took 
exception see Farrand, The Development of the United States, p.^ 37. 
Farrand quotes Madison's statement made after the Revolution, that "The 
line of distinction between the power of regulating trade and that of 
drawing revenue from it, which was once considered the barrier of our 
liberties, was found, on fair discussion, to be absolutely undefinable." 
Ibid, 38 See also Story, op. cit. II, Sec. 1080. For careful argument 
from the standpoint of economics that taxes laid tor purposes of regu- 
lation and destruction should be subsumed under the power of taxation 
and not under the police power, see Seligman, Essays in Taxation, pp. 
402-406, 411-413. 

81 Federal Taxation of Lotteries, (1892) Atlantic Monthly, Vol. 69, 
523. Supplementing the phrase quoted in the text, Judge Cooley adds that 
the lawmaker "must net aim to make his law as productive as possible, 
but rather to make the demand upon the people as little burdensome as 
may be, and at the same time, as far as possible, incidentally beneficial." 
Commenting further upon the proposed tax he says : "Such taxation 
would, of course, contemplate no revenue to the government. It _ would 
be imposed for the express purpose of destroying altogether the institu- 
tions which, by any unfriendly action of Congress, taken with the express 
intent of destruction and shaped professedly to that end, it would _ be 
powerless to reach. It would, in other words, be making a practical 
application by the federal government of the legal aphorism that 'a power 
to tax is a power to destroy.' Ibid, p. 526. Arguments for and against 
the tax are discussed in the article. Compare with the state-nent of same 
writer in his work on Taxation, 3d Ed. I, 191. 

82 Commentaries. I. 



270 MINNESOTA LAW REVIEW 

sional taxing power for the purpose of providing for "the com- 
mon defense and general welfare." 83 

After dealing thus with the revenue only theory of the fed- 
eral taxing power, the friends of the child labor tax and similar 
legislation, in order to establish their case, must still demolish 
the proposition that Congress may use its power of taxation for 
only such purposes . as fall within the scope of the other dele- 
gated powers of Congress. 84 The argument on this point may 
be summarized thus : In the first place, while Congress enjoys 
only delegated powers, those powers, save when limited by an 
express restriction or prohibition, are plenary and complete. 
This is elementary constitutional law. 85 "Except when expressly 
limited, ... a power granted to the federal government is con- 
strued to be absolute in character." 86 This means that apart 
from these specific exceptions Congress has the same power to 
lay taxes or to regulate commerce as is possessed by the British 
Parliament or any other sovereign government in the world. 87 
Its granted powers do not shrink or melt away by the insidious 
working of implied restrictions or reservations. Secondly, it 
must be remembered that what section 8 of article I of the con- 
stitution grants to Congress is "power." Nothing is said about 
the purposes for which the various grants of power there dele- 
gated are to be used. The grant stands as an independent and 
self-sufficient delegation of authority. Congress is not given 
a list of topics about which it is to be allowed to pass laws ; nor 
is it given merely a set of legislative tools or methods to be used 
in doing a certain limited group of assigned tasks and in the 
use of which, to borrow Professor Powell's apt phrase, Congress 
"suffers the limitations of the player at jackstraws," 88 fearful 

83 Report on Mahulactures, Dec. 5, 1791. Works, Lodge Ed., Vol. 
IV, 151. It should be noted, however, that Hamilton's argument did 
not proceed on the assumption that no revenue would be raised by the 
protective tariffs proposed. 

84 Supra, p. 261. 

85 ."But it must not be forgotten that when the constitution was 
adopted there came into existence a nation (as distinguished from a 
league of states) which possessed absolute and unlimited inherent pow- 
ers." Black, op. cit., 35; Hall, op. cit, 255; Hare, op. cit, 94; McCain, 
op. cit., 43; Pomeroy, op. cit., 70. McCulloch v. Maryland, supra, p. 
•'05; United States v. Cruikshank, (1876) 92 U. S. 542, 550, 23 L. Ed. 588. 

86 Willoughby, op. cit., I, 54. 

87 Supra, p. 268. Story, op. cit, II, 1081. 

88 The Child Labor Decision, The Nation, June 22, 1918, Vol. 106, 
p. 730. 



THE NATIONAL POLICE POWER 271 

always of trespassing on the domain of state authority. 89 It is 
given the power to lay taxes and to coin money and to regulate 
commerce and these powers are to be used in the broad discre- 
tion of Congress for the promotion of the national welfare. 
Finally, by very definition it is utterly impossible for the reserved 
powers of the states to operate as a limitation upon the scope or 
method of operation of the powers delegated to Congress by the 
constitution. Such a conception involves a flat contradiction in 
terms. What are the reserved powers of the states but the pow- 
ers left after the powers of Congress have been delegated? 90 
Curious indeed would be the arithmetical process of subtraction 
in which the remainder, somehow rendered inviolable in advance, 
helped determine the size of the subtrahend. And yet precisely 
this absurdity is involved in the theory that the reserved powers 
of the states have become transformed into a sort of ark of the 
covenant which Congress in the exercise of its granted authority 
must not touch. If a power is delegated to Congress, then by 
virtue of that very fact there can be no reserved power of the 
states with which it could in any way or under any circum- 
stances conflict. 91 

If Congress is not limited in using its power to tax to the 
raising of revenue or to such purposes as may be subsumed 
under the grants of power in article I, it follows that that power 
may be wielded generously in any way which will promote the 
common defense and general welfare. It may stimulate industry ; 
it may regulate the size of incomes or private fortunes ; it may 

89 "The question then is narrowed to whether the exercise of its 
otherwise constitutional power by Congress can be pronounced un- 
constitutional because of its possible reaction upon the conduct of the 
states in a matter upon which I have admitted that they are free from 
direct control. I should have thought that that matter had beep disposed 
of so fully as to leave no room for doubt. I should have thought that 
the most conspicuous decisions of this Court had made it clear that the 
power to regulate commerce and other constitutional powers could not be 
cut down or qualified by the fact that it might interfere with the carrying 
out of the domestic policy of any state." Dissenting opinion of Mr. 
Justice Holmes, Hammer v. Dagenhart, supra. 

90 "The powers not delegated to the United States by the Constitution, 
nor prohibited by it to the states, are reserved to the states respectively, 
or to the people." Constitution of U. S., Amendment X. 

91 Compare Professor Powell's argument on this point in respect to 
the Keating-Owen Act : "If the child labor law was a proper exercise of 
the power to regulate interstate commerce, it was by the explicit terms 
of the tenth amendment not an exercise of a power reserved to the 
states. If it was not a proper exercise of the power to regulate interstate 
commerce, it was unconstitutional, and nothing more need be said about 
it." The Child Labor Law, the Tenth Amendment and the Commerce 
Clause, (1918) 3 So. Law Quar. 175. 



272 MINNESOTA LAW REVIEW 

suppress vice or other conditions fraught with menace to the 
people. In short, questions which may arise regarding the pur- 
poses for which Congress uses its power of taxation are ques- 
tions solely of legislative policy and not in any sense questions 
of constitutional law. 92 

The right to use the taxing power for these broad purposes 
would not, even in the judgment of its advocates, warrant its 
exercise in such a way as to destroy fundamental private rights. 
Should Congress impose a tax of a thousand dollars upon all 
persons who ate bread or were members of the Roman Catholic 
Church, the court would of necessity decide that such an exercise 
of the power to tax was an invasion of the rights which are, 
in any free government, inviolable. 93 Such a limitation would 
clearly be in line with the theory upon which the Supreme Court 
has held that taxes may be levied only for a public purpose. 94 
But these limitations in behalf of the fundamental rights of the 
citizen would not interfere with the use of the congressional 
taxing power for any purposes related to the common defense 
and general welfare of the nation. 

The Problem of Objective Constitutionality 

Thus far the purposes for which Congress may use its power 
to tax have been considered in the light of general constitutional 

92 After adverting to the implied restriction that Congress may not 
tax the states or their instrumentalities, Cooley states : "With the excep- 
tion of cases resting on like or kindred reasons to those suggested, the 
protection as against the abuse of the federal power to tax must be 
looked for in the good sense of the representatives of the people, and in 
keeping alive the feeling that for all improper legislation they may be 
held to strict accountability by their constituents." Op. cit, Atlantic 
Monthly, Vol. 69, 534. "In selecting objects of taxation we have a right 
to keep in mind, as every Congress has kept in mind, the general welfare 
of the people of the United States. The object of taxation is revenue. 
The motive with which, for one, I vote to select this particular article for 
taxation is the interest, as I understand it, of the people." Speech of 
Senator Spooner on Oleomargarine Tax Act of 1902, Cong. Rec, April 
1, 1902, Vol. 35, 3506. 

93 "Let us concede that if a case was presented where the abuse of 
the taxing power was so extreme as to be beyond the principles which 
we have previously stated, and where it was plain to the judicial mind 
that the power had been called into play, not for revenue, but solely for 
the purpose of destroying rights which could not be rightfully destroyed 
consistently with the principles of freedom and justice upon which the 
constitution rests, that it would be the duty of the courts to say that 
such an arbitrary act was not merely an abuse of a delegated power, but 
was the exercise of an authority not conferred." White, C. J. in McCray 
v. U. S., (1904) 195 U. S. 27, 64, 24 S. C. R. 769, 49 L. Ed. 78, 1 Ann. 
Cas. 561. 

94 Loan Association v. Topeka, supra. 



THE NATIONAL POLICE POWER 273 

principles. The questions discussed here have been those which 
each member of Congress must settle in his own mind before vot- 
ing for a taxing bill regarding which these controversies might 
arise, since he is bound by his oath of office to support the consti- 
tution. They have all been concerned with the broad issue : Is the 
use of the taxing power for general police purposes defensible on 
sound constitutional principles? They all relate, therefore, to 
what has been aptly termed the problem of subjective consti- 
tutionality. 95 

There remains to be considered what may be called the prob- 
lem of objective constitutionality. Assuming for the sake of 
argument that the child labor tax or some analogous act violates 
sound constitutional principles, can the Supreme Court actually get 
hold of that unconstitutionality and declare the tax null and void? 
In other words, is the constitutionality of the act of such a na- 
ture that the courts can afford judicial relief? For it must be 
borne in mind that there are plenty of instances in our constitu- 
tional system in which the Supreme Court is powerless to pre- 
vent even the flagrant violation of our fundamental law. 96 Does 
the use by Congress of a constitutional power for an unconstitu- 
tional purpose create a case in which the remedy for unconstitu- 
tional action must be political rather than judicial? 

Consideration of this problem may well begin with an exam- 
ination of the case of McCray v. United States, 97 in which in 1904 
the Supreme Court sustained the validity of the oleomargarine 
tax of 1902. It was urged upon the court in this case that the 
tax of ten cents per pound upon colored oleomargarine was not 
designed to raise revenue but to suppress the manufacture of 
the article taxed. Everyone knew of course, that this was true. 
Such a tax was alleged to be unconstitutional because it amounted 
to an invasion of the reserved power of the states, because it was 
not in itself a legitimate means of exercising the taxing power, 
because of its destructive nature, and because it amounted to a 
deprivation of liberty and property rights which no free govern- 
ment might destroy. 

The opinion of Mr. Justice White in the McCray case de- 
clared, first, that the court could not inquire into the motives 

95 Infra, p. 275. 

96 These instances are those in which the Court faces what it has 
called "political questions." See Black, op. cit., 100, Cooley, Principles, 
157, Hall. op. cit., 40. Willoughbv, op. cit., II, 999. 

9 ? (1904) 195 U. S. 27, 24 S. C. R. 769, 49 L. Ed. 78, 1 Ann. Cas. 561. 



274 MINNESOTA LAW REVIEW 

which actuated a particular exercise of an admitted power of 
Congress. This is, of course, familiar doctrine. 98 

"No instance is afforded," said the court, "from the founda- 
tion of the government where an act which was within a power 
conferred, was declared to be repugnant to the constitution, be- 
cause it appeared to the judicial mind that the particular exertion 
of constitutional power was either unwise or unjust. . . . 

"It is, however, argued if a lawful power may be exerted 
for an unlawful purpose, and thus, by abusing the power, it may 
be made to accomplish a result not intended by the constitution, 
all limitations of power must disappear, and the grave functions 
lodged in the judiciary, to confine all the departments within the 
authority conferred by the constitution, will be of no avail. This, 
when- reduced to its last analysis, comes to this : that because 
a particular department of the government may exert its lawful 
powers with the object or motive of reaching an end not justified, 
therefore it becomes the duty of the judiciary to restrain the 
exercise of a lawful power wherever it seems to the judicial mind 
that such lawful power has been abused. But this reduces itself 
to the contention that, under our constitutional system, the abuse 
of one department of the government of its lawful powers is to 
be corrected by the abuse of its powers by another department." 

In the second place, the court refused to invalidate the act 
on the ground that the results of the law, irrespective of its form 
or the motives of its framers, were such as to indicate an uncon- 
stitutional use of the taxing power. The court said : 

"Undoubtedly, in determining whether a particular act is 
within a granted power, its scope and effect is to be considered. 
Applying this rule to the acts assailed, it is self-evident that on 
their face they levy an excise tax. That being their necessary 
scope and operation, it follows that the acts are within the grant 
of power. The argument to the contrary rests on the proposition 
that, although the tax be within the power, as enforcing it will 
destroy or restrict the manufacture of artificially colored oleo- 
margarine, therefore the power to levy the tax did not obtain. 
This, however, is but to say that the question of power depends, 
not on the authority conferred by the constitution, but upon what 
may be the consequence arising from the exercise of the lawful 
authority." 

The upshot of the McCray case, then, seems to be that the 
Supreme Court will not invalidate any congressional act which 
"on its face" levies a tax, no matter what the motive or results 

98 Black, op. cit, 69 ; Cooley, Constitutional Limitations, 257 ; Story, 
op. cit, II, sec. 1090; Willoughby, op. cit., I, 18; United States v. Des 
Moines Nav. & R. Co., (1891) 142 U. S. 510. 544, 35 L. Ed. 1099, 12 S. C. 
R. 308; Weber v. Freed, (1915) 239 U. S. 325, 330, 60 L. Ed. 308, 310, 36 
S. C. R. 311. Ann. Cas. 1916C 317; Dakota Cent. Teleph. Co. v. South 
Dakota, (1919) 250 U. S. 163, 194, 63 L. Ed. 910, 924, 39 S. C. R. 507. 



THE NATIONAL POLICE POWER 275 

of that act may be. This is all that the case actually decided. 
The court suggests by way of dictum that there may be attempts 
by Congress to exercise the taxing power which are not "on their 
face" acts of taxation and which not only amount to "an abuse 
of delegated power, but the exercise of an authority not con- 
ferred." But it seems clear that what Mr. Justice White had in 
mind was the possibility of the use by Congress of its taxing 
power for the destruction of fundamental private rights." 

This raises the interesting question, when, if ever, does a law 
purporting to be an exercise by Congress of its power to tax 
cease to be a tax "on its face," so as to justify the court in de- 
claring it null and void. 100 The answer to this question is not to 
be found in Mr. Justice White's opinion in the McCray case, 
but some light upon the meaning which he attached to the phrase 
"on its face" may be gleaned from a further perusal of his re- 
marks in the United States Senate while he was a member of 
that body. 

In the first place, it is apparent from the statements of Sen- 
ator White that a law purporting to be a tax law does not in his 
judgment necessarily cease to be a tax "on its face" and thereby 
fall under the judicial ban even when as a member of Congress 
he would be obliged to vote against the bill as unconstitutional 
because he knows the purpose of the tax to be not revenue but 
prohibition or regulation. 101 He cannot necessarily know and 
act upon as a judge the things which he knows as a legislator. 

"It is perfectly self-evident when a bill, which is a revenue 
bill, comes to me for consideration, as to whether I will vote for 
it or not, it may be to me — if I may be allowed to use the word, 
a philosophical word — subjectively unconstitutional per se, and 
I may not vote for it as constitutional, because I know that, 
although it is a revenue bill, there is a purpose of destruction 
and prohibition contained in it. But when it comes to the court, 
the court can only look at it objectively. The court must look 
at its provisions, and if on its face it is a revenue bill, if on its 
face it be for the purpose of raising revenue, the court will say 
that it cannot consider the motive, but must decree its enforce- 
ment. . . . 

99 For the full context see note 93, supra. 

100 It is interesting to note that Cooley also uses this phrase "on its 
face" in discussing the validity of taxing acts. He says : Practically, 
therefore, a law purporting to levy taxes, and not being on its face 
subject to objection, is unassailable, whatever may have been the real 
purpose." Principles of Constitutional Law, p. 58. 

101 It is clear, of course, that Senator White adhered to this narrower 
view of the proper purposes of federal taxation. Supra, p. 264. 



276 MINNESOTA LAW REVIEW 

"If I were the Executive or a judge and the bill came to me, 
then having passed out of this sphere and into another sphere 
where motives could not enter, I should say the sole question 
presented to me was, does it raise revenue on its face, and if so, 
I would hold it constitutional." 102 

But in the second place, if a judge is convinced from a study, 
not of the congressional debates, but of the provisions of the 
taxing measure itself, that it cannot in practical effect raise any 
revenue, but must of necessity result in regulation or destruction 
of things outside congressional authority, he may then conclude 
that it is not a tax law "on its face" and may hold it unconsti- 
tutional. This was Senator White's attitude toward the destruc- 
tive taxes proposed to be levied upon cotton and grain futures. 
He declared that : 

"On the very face of the bill not even a pretext of taxation 
can be found. By the very terms of the bill no tax can result 
from its provisions. . . . 

"It is perfectly true that in two or three cases the Supreme 
Court of the United States has said that where on the face of 
a statute there was the exercise of taxation, as the statute was on 
its face a taxing statute, the court would not destroy the face 
of the statute with the sponge of the motives which may have 
actuated the members who passed it. Is that the case here? 
Where the face of the statute shows no tax, where the face of 
the statute itself eliminates all human possibility of the exercise 
of the taxing power for revenue, then I say the mission of juris- 
diction is given to the courts of this land to brush that statute 
away for its flagrant and open violation of the constitution. . . . 
If the usurpation is clear on the face of the act, if the act itself 
shows the usurpation, the power exists in the Supreme Court to 
prevent the usurpation." 103 

In short, when the court concludes from a scrutiny of the act 
itself that the act cannot in effect produce revenue, it need not 

i°2 Cong. Rec., July 21, 1892, Vol. 23, 6518-6519. 

Compare with this the following statement by President Cleveland in 
his message accompanying his approval of the Oleomargarine Tax Act of 
1886: "It has been urged as an objection to this measure that while pur- 
porting to be legislation for revenue its real purpose is to destroy, by the 
use of the taxing power, one industry of our people for the protection 
and benefit of another. 

"If entitled to indulge in such a suspicion as a basis of official action 
in this case, and if entirely satisfied that the consequences indicated would 
ensue, I should doubtless feel constrained to interpose executive dissent. 

"But I do not feel called upon to interpret the motives of Congress 
otherwise than by the apparent character of the bill which has been pre- 
sented to me, and I am convinced that the taxes which it creates cannot 
possibly destroy the open and legitimate manufacture and sale of the 
thing upon which it is levied." Richardson. Messages and Papers of the 
President, VIII, 427. 

103 Cong. Rec, July 21, 1892, Vol. 23, 6516. 



THE NATIONAL POLICE POWER 277 

hesitate, according to Senator White, to declare that Congress has 
tried to wield an authority which it does not possess and that 
such an exercise of the taxing power is "objectively" unconsti- 
tutional. 104 

Senator White's standard for judging the objective consti- 
tutionality of a congressional use of the taxing power has much 
more than an academic interest, first because his present position 
as Chief Justice of the United States gives him an opportunity to 
apply it or urge its application in the forthcoming decision on 
the validity of the child labor tax, and also because he has already 
had one opportunity to apply it, namely, in the McCray case, 
and it is therefore possible to observe its nature and limitations. 
The fact that the oleomargarine tax of 1902 was under the cir- 
cumstances found objectively constitutional throws some light 
upon the true value of Senator White's test as a check upon the 
use of the federal taxing power for police purposes. In com- 
menting in the Senate in 1892 upon the oleomargarine tax of 
1886, Senator White declared that when this measure was intro- 
duced into Congress it provided for a "prohibitive tax" but that 
in spite of the pressure for its passage it was too much for the 
"constitutional stomachs" of some of the members and it was 
accordingly reduced to a revenue-producing capacity. 105 The im- 
plication is perfectly clear that Senator White regarded this 
"prohibitive" tax as one which was objectively unconstitutional; 
while the tax in its reduced form was objectively constitutional. 
Now this objectively unconstitutional tax on oleomargarine was a 
tax of ten cents per pound. In 1904, however, when as associate 
justice of the Supreme Court, Mr. White wrote the opinion in 

104 "Now let us reason out the consequences, if it be not true. If this 
be not true, then the beautiful system by which, as 1 said just now, all 
the departments of the government move in a common orbit, vanishes 
out of the sidereal universe of government and passes into confusion 
and chaos. The precedents are against it. The power which the Su- 
preme Court of the United States exercises in the review of statutes is 
like unto the power exercised by the supreme courts of all the states. The 
books are full of cases in the state courts drawing the distinction which 
I have made. In the Topeka case it is drawn in plain words by the 
Supreme Court of the United States. There a government appropriated 
a sum of money, declaring it to be for a public purpose. The case went 
to the Supreme Court of the United States and it said your motive and 
your purpose cannot be inquired into. That is removed beyond the do- 
main of controversy or question. But where you have called the statute 
one thing and the "very terms of the statute indicate another thing, and 
that other thing is outside the powers of government, then it is not a 
statute at all, but it is a violation of authority and we strike it from the 
statute books." Cong. Rec. July 21, 1897, Vol. 23, 6516. 

io5 Cong. Rec, July 21, 1892, Vol. 23, 6518. 



278 MINNESOTA LAW REVIEW 

the McCray case, the same tax of ten cents per pound on colored 
oleomargarine seemed to him "on its face" to be a revenue meas- 
ure and therefore objectively constitutional. A tax objectively 
unconstitutional in 1886 turns out to be objectively constitutional 
in 1904. 10G One is forced to the conclusion that he found as 
justice of the Supreme Court insurmountable difficulties in the 
way of declaring "objectively unconstitutional" a taxing statute 
which as a legislator he had felt convinced should fall under the 
judicial ban. 

It is not at all surprising" that the Supreme Court, even had 
it been unanimously inclined to do so, should have found it 
exceedingly difficult to declare unconstitutional a law purporting 
to be an exercise by Congress of its delegated power of taxation 
because it did not "on its face" levy a tax. In addition to the 
general presumption of constitutionality which attaches to any 
act of the legislature there is added, unless Congress is unusually 
careless, the presumption arising from the legislative label declar- 
ing the act to be for the raising of revenue. 107 It is necessary also 
for the court to give full weight to the unquestioned freedom 
of Congress to select the subjects of lawful taxation, 108 and, 
having selected them, to impose rates which are restricted only 
by legislative discretion. 109 The court must also exercise 
sufficient self-control to rule out of consideration all that it may 
know about the purposes and motives actuating the legislators 
responsible for passing the law. 110 It is not at liberty to decide 

106 There is a theory on which the Act of 1886 can be distinguished 
from, the Act of 1902. The earlier law levied a uniform tax upon all 
oleomargarine. The Act of 1902 levied a tax of one-quarter of a cent 
per pound on uncolored oleomargarine and a tax of ten cents per pound 
on that which was colored. It was argued in Congress that the destruc- 
tive tax upon the colored product was to aid the government in the en- 
forcement of the revenue-producing tax on the uncolored product by 
preventing a deception which would facilitate tax evasion. See remarks 
of Senator Hoar, Cong. Rec, Mar. 26, 1902, Vol. 35, 3282, and of Senator 
Spooner, ibid 3506. This is the theory upon which the Supreme Court up- 
held the Harrison Anti-Narcotic Act in the recent case of the United States 
v. Doremus, (1919) 249 U.S. 86,63 L.Ed.—, 39 S. C. R-.214. There is no 
evidence, however, that Mr. Justice White attached any significance to this 
point when writing his opinion in the McCray case. 

107 The entire statute was entitled 'An Act to Provide Revenue and 
For Other Purposes;" the section relating to child . labor was entitled 
"Tax on the Employment of Child Labor." 

los Treat v. White, (1900) 181 U. S. 264, 45 L. Ed. 853, 21 S. C R. 
611 ; Patton v. Brady, (1902) 184 U. S. 608, 46 L. Ed. 713, 22 S. C. R. 493. 
See Cooley, Principles, p. 57; Cooley, Taxation, I, 179-180. 

109 Marshall established this doctrine in McCulloch v. Maryland. 
Knowlton v. Moore, (1900) 187 U. S. 41, 58, 20 S. C R. 747, 44 L. Ed. 969. 

110 See note 98, supra. 



THE NATIONAL POLICE POWER 279 

whether or not "on its face" the act raises revenue by finding out 
whether or not, when set in operation, it actually does raise any 
revenue. 111 Probably in most cases also such evidence would be 
lacking at the time the court needed it, 112 and such evidence 
might be of very questionable reliability as a guide to the 
court. 11 "' If the court is able thus to orient itself sufficiently and 
to bring to bear on its problem the mental complex which should 
result from the considerations above noted, it must then address 
itself to the problem whether the provisions of the statute which 
it is scrutinizing are, in and of themselves, of such a character 
as to leave no reasonable doubt that the act is not an act to raise 
revenue. To make this judicial guess as to what the statute was 
probably meant to accomplish and what it probably will accom- 
plish, the court must deal with factors which are not only highly 
speculative in character but have an awkward tendency to fluc- 
tuate. Whether an alleged revenue law may be reasonably pre- 
sumed to produce revenue will depend upon circumstances, and 
circumstances may change. The measure of constitutionality 
might thus tend to shift. 11 * In short, in applying this test of ob- 
jective unconstitutionality, the court will properly feel that it 
must be more than usually sure of its ground in respect to a 

111 See paragraph quoted from Mr. Justice White's opinion in the 
McCray case, note 93 supra. 

112 As when the question of the validity of the taxing act is raised in 
an action seeking an injunction to restrain enforcement. This was the 
nature of the proceeding in the United States district court in which the 
child labor tax has been held invalid. Supra, note 11. The court might 
be compelled to determine this question before the law had been fairly 
put into operation. 

113 It is, of course, well known that even fiscal experts are frequently 
deceived as to the actual revenue-bearing capacity of a particular tax. 
Furthermore, interested parties might secure the payment for a tem- 
porary period even of prohibitive taxes in order to provide evidence of 
the ability of the tax to produce some revenue. 

114 This was pointed out in humorous fashion by Mr. Hepburn in the 
debate in the House on the oleomargarine tax of 1886 : "In the year 
1887, when the effect of the bill, we will suppose, is to prohibit the manu- 
facture of oleomargarine, the bill becomes unconstitutional. But sup- 
pose the next year on account of the withdrawal of 200,000,000 pounds of 
this spurious butter that is sold, and used as butter, leaving on the market 
1,000.000 pounds of good butter, the price of butter is enhanced, going up 
to 25c or 30c a pound. The manufacturer of the bogus article can then 
compete, if he can make the article and pay the tax, so that there will 
be a revenue of $20,000,000 to the government. Then the law becomes a 
constitutional measure ! So that according to the gentleman's argument 
the bill may be constitutional in 1886, unconstitutional in 1887, and again 
become constitutional in 1888. 1 he bill is not constitutional or unconsti- 
tutional because of the nature of the enactments that it contains, but 
because of the price of butter!" (Laughter.) Cong. Rec, Vol. 17, 4901. 



280 MINNESOTA LAW REVIEW 

problem so vague and baffling in character that sureness of 
ground will frequently be well nigh unattainable. 

The writer ventures the opinion that should the majority of 
the Supreme Court adopt either the revenue only theory of 
federal taxation or Chief Justice White's theory that the purposes 
for which Congress may tax are limited by the reserved powers 
of the states, it would find the problem of applying any satis- 
factory test of objective constitutionality for the purpose of 
enforcing such limitations so fraught with difficulties that those 
limitations would practically cease to function. Congress would 
find itself possessed in reality of practically the same broad pow- 
ers of taxation which the states and other sovereign governments 
enjoy. Such power would continue to be subject to all the 
express limitations found in the constitution; it would be subject 
to the implied limitation that the revenue raised must be for a 
public purpose; it would be subject to the implied limitation that 
it must not burden the governments or functions of the states ; 
it would be subject to the implied limitation that it must not 
infringe the individual rights which under a free government are 
inviolable. It seems exceedingly doubtful that any instance will 
arise in which a law passed by Congress in exercise of its power 
to tax which was safely within all these express and implied 
restrictions will be declared null and void by the Supreme Court 
because "on its face" it does not "levy a tax." If Senator White's 
standard of objective constitutionality failed to function in the 
McCray case, it is not easy to imagine the kind of taxing statute 
to which it would apply. If it was inapplicable to the oleomar- 
garine tax of 1902 it is hard to discover its applicability to the 
child labor tax of 1919. 

By way of summary and conclusion it may be suggested that 
the nature of the purposes for which Congress may properly 
use its power to tax is a question on which there is now and 
has always been a wide difference of opinion. There is plenty 
of respectable authority for the support of each one of the three 
views discussed. It may be noted that Congress has proceeded 
upon the theory that it may use its power to tax for the accom- 
plishment of any purposes which will aid the common defense 
and general welfare. It is apparent that the Supreme Court has 
never put its official sanction upon any one of the three theories 
of federal taxation to the exclusion of the others. It seems 
probable that the narrower and more restricted conceptions of 



THE NATIONAL POLICE POWER 281 

the taxing power would, from the standpoint of the practical 
problem of judicial construction, prove incapable of satisfactory 
enforcement. There is every indication that Congress, if it is 
sufficiently circumspect, may continue to exercise a liberal police 
power through the medium of regulatory and destructive taxes 
without fear of judicial interference. 

But if the child labor tax is upheld, either because the Su- 
preme Court decides upon broad grounds that the law is consti- 
tutional or because it finds its unconstitutionality inaccessible, 
Congress will be justified in feeling that it has been substan- 
tially fortified in its position that it may use its power to tax as 
an instrumentality for the exercise of a broad national police 
power. It will be reasonable to look for further and more far- 
reaching measures seeking by means of taxation to regulate 
conditions and suppress evils over which Congress has no direct 
authority.* 

*This series of articles will be concluded by an article, "The National 
Police Power under the Postal Power." 



402 MINNESOTA LAW REVIEW 



NATIONAL POLICE POWER UNDER THE POSTAL 

CLAUSE OF THE CONSTITUTION 

If one were asked to explain and illustrate the doctrine of 
implied powers as it has functioned in the development of our 
constitutional law, there would probably be no easier way to' do 
it than to point to the enormous expansion of the postal power 
of Congress. 1 The clause in the federal constitution which grants 
to Congress the power "to establish Post Offices and Post 
Roads" 2 was inserted there almost without discussion. 3 It seems 
to have appeared entirely innocuous even to the most suspicious 
and skeptical of those who feared that the new government would 
dangerously expand its powers at the expense of the states and 
the individual. 4 And yet that government had hardly been set 
in operation before this brief grant of authority began to be 
subjected to a liberal and expansive construction under which 
our postal system has come to be our most picturesque symbol 
of the length and breadth and strength of national authority. 5 

1 The subject of the expansion of the postal power of Congress has 
been fully treated in a very excellent monograph by Lindsay Rogers 
entitled "The Postal Power of Congress," Johns Hopkins University Stu- 
dies in Historical and Political Science, 1916. The writer has drawn 
freely upon Professor Rogers' researches in the preparation of this article. 

2 Art. I, Sec. 8, CI. 7. 

3 In its present form it was not debated at all. In the New Jersey 
Plan introduced into the Convention by Paterson on June 15 it was pro- 
posed to allow Congress to raise revenue, among other ways, "by a post- 
age on all letters or packages passing through the general Post Office." 
Farrand, Records of the Federal Convention, I, 243. The history of the 
postal clause in the convention is traced in Rogers, op. cit., 23. It throws 
no light on the present problem. 

4 Madison, in the 42nd number of the Federalist, dismissed the subject 
with the statement, "The power of establishing post roads, must, in every 
view, be a harmless power ; and may, perhaps, by judicious management, 
become productive of great conveniency." 

5 "Under that six-word grant of power the great postal system of this 
country has been built up, involving an annual revenue and expenditure of 
over five hundred millions of dollars, the maintenance of 60,000 post 
offices, with hundreds of thousands of employees, the carriage of more 
than fifteen billions of pieces of mail matter per year, weighing over two 
billions of pounds, the incorporation of railroads, the establishment of the 
rural free delivery system, the money order system, by which more than 
half a billion of dollars a year is transmitted from person to person, the 
postal savings bank, the parcel post, an aeroplane mail service, the sup- 
pression of lotteries, and a most efficient suppression of fraudulent and 



THE NATIONAL POLICE POWER 403 

This expansion of national authority under the postal power 
given to Congress has proceeded along two distinct but related 
lines. There has been, in the first place, a striking expansion of 
what may be called the collectivist or socialistic functions carried 
on through the post office. 6 Here may be mentioned such enter- 
prises as the postal money order system, the postal savings bank, 
the parcel post, and the use of the post office as an agency of 
publicity to aid in the marketing of farm products and in solving 
the problem of unemployment. In some countries, of course, the 
scope of the collectivist functions delegated to the post office 
is much broader than in the United States ; but it seems highly 
probable that the American postal system has by no means 
reached the limit of its growth as an agency for positive service 
to the people. 7 This interesting subject is not, however, the one 
under consideration in this article. In the second place, national 
authority under the postal power has developed in striking meas- 
ure along the line of repression and regulation effected by the 
denial or forfeiture of postal privileges. Acting on the theory 
that the hand which bestows privileges may also withhold them, 
Congress has wielded the power of exclusion from the mails 
with a vigorous arm. It has refused to carry in the mails a long 
list of articles injurious in themselves or destined for injurious 
uses, has denied the use of postal privileges in aid of fraudulent 
transactions, and has seriously contemplated at times denying 
entirely all mail privileges as a penalty for certain acts on the 
part of the corporation or the individual which it would have no 
direct authority to punish. Congress has in this way generously 
extended the scope of its authority over many subjects which 
the framers of the constitution undoubtedly assumed they had 

criminal schemes, impossible to be reached in any other way." Read into 
the opinion of the Supreme Court from the brief for the government in 
Lewis Publishing Co. v. Morgan (1912) 229 U. S. 288, 57 L. Ed. 1190, 
33 S. C. R. 867. 

6 Rogers, op cit., 33. 

7 Possible expansion of postal functions is suggested by the types of 
service rendered by the post office during the war as fiscal agent for the 
government through the handling of War Savings Stamps as well as other 
miscellaneous activities. The war-time control of the telegraph and tele- 
phone systems by the postmaster general was effected as an exercise of 
the war power, and no apparent effort was made to correlate the activi- 
ties of those systems with those of the post office, as is done in some 
European countries. Whether Congress could, merely as an exercise of 
the postal power, acquire all the telegraph lines is a question which was 
referred to but left open by the Supreme Court in the case of Pensacola 
Telegraph Co. v. Western Union Telegraph Co., (1877) 96 U. S. 1, 24 
L. Ed. 708. 



404 MINNESOTA LAW REVIEW 

succeeded in leaving to the exclusive jurisdiction of the states. 
In short, the national government has managed to make the 
seemingly matter-of-fact and innocent grant of authority to 
establish post offices and post roads serve as a "constitutional 
peg" upon which to hang a very substantial federal police power 
which may be employed to regulate and protect the national 
safety, good order, and morals. The postal power, therefore, 
forms a very important adjunct to the power to regulate com- 
merce, 8 and to tax, 9 the three powers building up both by direc- 
tion and indirection what, for want of a better term, may be called 
the police power of the national government. It is the purpose 
of this article to trace the various lines along which this national 
police power has developed under the postal clause of the con- 
stitution, to examine the conflicting views regarding the constitu- 
tional propriety of that development, and to determine, if possible, 
what are the true limits of the police power so derived. 

The problem under consideration may be conveniently treated 
under four principal topics : ( 1 ) First, there are police regula- 
tions which Congress has enacted to protect the safety and 
efficiency of the postal system. Here may be placed such laws 
as those excluding poisons and explosives from the mails. (2) 
Second, there are those police regulations enacted to prevent the 
postal system from being used for purposes which are injurious 
to the public welfare or to encourage such uses of the postal 
system as are beneficial to the public welfare. The fraud order 
legislation and the obscene literature acts will fall into this group. 
(3) Third, may be mentioned those regulations which deny the 
right to use the mails for the purpose of violating or evading 
the laws of the states. The act forbidding the mailing of liquor 
advertisements into prohibition states exemplifies this type of 
statute. (4) Finally, there are proposals that conformity to 
general police regulations be made the price of the enjoyment 
of postal privileges. Here would be classed the recent proposal 
to deny the privileges of the United States mails to all persons 
employing child labor. Each of these types of police regulation 
under the postal power may be briefly examined. 

8 See Cushman, The National Police Power under the Commerce 
Clause of the Constitution, (1919) 3 Minnesota Law Review 289, 381, 
452. 

9 See Cushman, The National Police Power under the Taxing Clause 
of the Constitution, (1920) 4 Minnesota Law Review 247. 



THE NATIONAL POLICE POWER 405 

I. Police Regulations to Protect the Safety and 
Efficiency of the Mails 

The right of Congress to pass such laws as are reasonably 
designed to protect the safety and efficiency of the postal system 
has at no time been seriously questioned, and is at present not 
questioned at all. Congress has been expressly granted the power 
to establish post offices ; and it would be ridiculous to allege that 
the power to establish a governmental agency did not of necessity 
carry with it the power to preserve and protect it when once 
established. 10 Congress has, in fact, exercised such power ever 
since our national postal system was created. The most obvious 
and natural form of postal protection has been, of course, the 
enactment of laws punishing various acts which are criminal in 
themselves. Some twenty sections of the United States Criminal 
Code 11 are devoted to such offenses as robbing, destroying, or 
obstructing the mails, injuring mail property, counterfeiting 
money orders and stamps, or in any way defrauding the post 
office. 12 But a consideration of these measures would not prop- 
erly be included in a discussion of the national police power 13 
even if they raised, as they do not, any interesting or important 
questions of constitutional construction. There are, however, 
two types of legislation which Congress has passed for protecting 
the mail service and promoting its efficiency which may be classi- 
fied as police regulations and upon which brief comment may be 
made. The first comprises the enactments designed to make the 
postal service a government monopoly ; the second includes the 
laws excluding from the mails things which would imperil or 

10 In developing his doctrine of implied powers Marshall used what 
he thought must be regarded as an entirely obvious illustration, the right 
of Congress to protect the post office. He said : "Take, for example the 
power to establish post offices and post roads. This power is executed 
by the single act of making the establishment. But from this has been 
inferred the power and duty of carrying the mail along the post road 
and from one post office to another. And, from this implied power, has 
again been inferred the right to punish those who steal letters from the 
post office, or rob the mail. It may be said, with some plausibility, that 
the right to carry the mail, and to punish those who rob it, is not indis- 
pensably necessary to the establishment of a post office and post road. 
This right is, indeed, essential to the beneficial exercise of the power, but 
not indispensably necessary to its existence." McCulloch v. Maryland, 
(1819) 4 Wheat. (U.S.) 316. 4 L. Ed. 579. 

11 Act of March 4, 1909, 35 Stat, at L. 1088. 

12 Ibid, Sees. 189-202, 205, 218-221, 227-228. 

13 The enactment of ordinary criminal statutes is usually classified as 
an exercise of power outside the scope of the police power. See Freund, 
Police Power, Sees. 4-8. 



406 MINNESOTA LAW REVIEW 

injure the mails themselves, or postal property, or postal em- 
ployees. 

1. Regulations to Insure Postal Monopoly. The national 
postal system was made a government monopolv in 1792 14 and 
has remained so ever since. 15 Although the grant of postal power 
to Congress did not by its terms create a government monopoly 
and although there is judicial authority for the view that the 
monopolistic character of the postal system results not from the 
postal clause but from the legislation enacted under it, 16 there 
would seem to be some reason to believe that the framers of 
the constitution expected that the new post office would become 
a monopoly in the hands of the government. There was plenty 
of precedent as well as public policy 17 to support such a principle. 
The British post office had long been a government monopoly 18 
and Blackstone had emphasized the paramount necessity for such 
exclusive control. 19 Thus while many questions have from time 
to time arisen as to the correct interpretation to be placed upon 
the acts of Congress penalizing the private carrying of the 
mails, 20 there has been no serious attack made upon the consti- 
tutional right of Congress to pass those laws. 21 The recent action 

14 Act of Feb. 20, 1792, 1 Stat, at L. 232. In 1782 the Congress of 
the Confederation had passed "An Ordinance for Regulating the Post 
Office of the United States of America." By one of the provisions of this 
Ordinance, Congress attempted to create and maintain a postal monopoly. 
7 Journals of Congress 383. For summary of this entire act, see Rogers, 
op. cit, 17 ff. 

15 United States Criminal Code, Act of March 4, 1909, 35 Stat, at L. 
1088, Sees. 179, 181, 186. 

16 "But the monopoly of the government is an optional, not an essential 
part of its postal system. The mere existence of a postal department of 
the government is not an establishment of the monopoly." United States 
v. Kochersperger, (1860) Fed. Cas. No. 15,541. 

17 "The post office monopoly is primarily an institution for the public 
benefit which must exclude competition from its profitable business in 
order to carry on the unprofitable business," Freund, Police Power, Sec. 
666. If the post office were to be used as a means of raising revenue as 
suggested in the Convention of 1787 (supra, note 3), another ground 
for monopoly would exist. 

18 The development of the British Post Office as a government monop- 
oly is traced at length by Hemmeon, The History of the British Post 
Office, Ch. IX. 

19 "Penalties were enacted in order to confine the carriage of letters 
to the public office only, except in some few cases : a provision which is 
absolutely necessary; for nothing but an exclusive right can support an 
office of this sort: many rival independent offices would only serve to 
ruin one another." Cooky's Blackstone, I, 323. 

20 Rogers, op. cit, 41 ff. 

21 "To give efficiency to its regulations and prevent rival postal sys- 
tems, it may perhaps prohibit the carriage by others for hire, over postal 
routes, of articles which legitimately constitute mail matter ..." Ex 



THE NATIONAL POLICE POWER 407 

of the federal authorities to prevent under the terms of the 
Criminal Code the transportation of telegraphic night letters by 
train instead of by wire, indicates that the statutes under con- 
sideration are adequate to cope with new and unusual forms of 
competition against the United States mails. 22 

2. Exclusion of Articles Injurious to the Postal Service. If 
Congress in the exercise of its power to regulate interstate com- 
merce may exclude from that commerce commodities which would 
endanger or injure the agencies by which it is carried on, 23 then, 
a fortiori, it must follow that Congress may provide similar pro- 
tection to a postal system which it not merely regulates but 
establishes and conducts. While it is highly desirable that Con- 
gress should require that adequate safety devices should be in- 
stalled on interstate trains and that reasonable regulations be 
complied with in transporting explosives or other dangerous 
materials, the fact remains that the federal government itself 
does not serve as a common carrier and its responsibility for 
the physical safety of interstate commerce is, perhaps, a second- 
ary responsibility. 24 The public which rides or which ships 
goods in interstate commerce would be loath to part with the 
protection guaranteed by federal laws; but their plight, were 
that protection removed, would be no different from that of the 
patrons of the wholly intrastate carriers which are not subject 
to federal authority. With the postal service, however, the case 
is very different. In respect to it Congress must assume a very 
definite and primary responsibility. In fact, there are at least 
four cogent reasons for the congressional exclusion of dangerous 
and injurious articles from the mails which do not apply to the 
exclusion of similar commodities from the channels of interstate 
commerce. In the first place, Congress has a proprietary interest 
in the postal system which it does not have in interstate com- 
merce. In passing the laws in question Congress is but taking 
reasonable precautions for the protection of the property of the 
federal government. In the second place, in co nducting its mail 

oarte Tackson (1877) 96 U. S. 727, 735, 24 L. Ed. 877; United States v. 
So^y (1851) 12 How. (U.S.) '87 13 L. Ed. 90S; United States v. 
Thompson, (1846) 9 Law Rep. 451, *ed. Cas. No. 16,489. 

22 New York Times, June 21, 1918. 

23 Cushman op. cit., 3 Minnesota Law Review 303. 

2* Persons sustaining loss by reason of the negligence of interstate 
carriers would, of course, have a right of action against the carrier to 
recover damages even in the absence of any statutory regulations insuring 
the safety of interstate commerce. 



408 MINNESOTA LAW REVIEW 

service the federal government offers itself as a carrier of other 
people's property. Letters and property are confided to its 
possession and control ; indeed the laws, as has been seen, 25 forbid 
all persons to confide mail matter to any one but the postal 
authorities. It follows, therefore, that the government must 
take every reasonable precaution to insure the safety of the 
property it not only permits but virtually requires to be con- 
fided to its care. If it fails to guarantee such safety there is no 
one else to whom the person who suffers the loss or injury of 
his property may look for reparation. In the third place, Con- 
gress should recognize a clear responsibility to provide adequately 
for the safety of its postal employees and to see that they are not 
exposed to avoidable dangers. Finally, since Congress has cre- 
ated the postal system and is the author and source of all postal 
privileges, the exercise of the power to deny those privileges to 
dangerous or injurious articles could not be attacked, as the 
congressional exclusions from interstate commerce have some- 
times been attacked, on the ground that Congress is denying a 
right or privilege which it did not create and which it has the 
authority merely to regulate and not to destroy. 26 

Enough has been said to indicate that there can be no question 
of the constitutional power of Congress to exclude dangerous and 
injurious articles from the mails. It is not only the right of 
Congress to pass such legislation but it is also its duty. This duty 
has been fulfilled by the insertion into the Criminal Code of a 
substantial list of articles which are declared non-mailable be- 
cause of their injurious character, 27 and by the delegation to the 
postmaster general of the authority to expand that list. 28 Not 
only has the validity of this legislation never been questioned, 
but the courts have not infrequently alluded to these laws as 
examples of the legitimate exercise of the postal power delegated 
to Congress. 29 Needless to say, this is a type of legislation which 

25 Supra, p. 406. 

26 For discussion of this distinction see infra, p. 423. 

"United States Criminal Code, Sec. 217, Act of March 4, 1909, 35 
Stat, at L. 1131. 

2S United States Official Postal Guide, 1918, p. 19. 

29 "It [Congress] may also refuse to include in its mails such printed 
matter or merchandise as may seem objectionable to it upon the ground 
of public policy, as dangerous to its employees or injurious to other mail 
matter carried in the same packages. The postal regulations of this coun- 
try issued in pursuance of act of Congress contain a long list of prohibited 
articles dangerous in their nature, or to other articles with which they 
may come in contact, such, for instance, as liquids, poisons, explosives and 



THE NATIONAL POLICE POWER 409 

other countries have also enacted in order to provide adequate 
protection to their mails. 30 

II. Classifications of Mailing Privileges to Prevent 
Harmful and to Encourage Beneficial 
Uses of Postal System 

It requires no argument to prove that the vast postal system 
of the United States, rendering as it does its many varieties of 
service and reaching practically every home, is an instrumentality 
for promoting and spreading civilization and culture. It is an 
enormous agency for good. The characteristics which make 
it an agency for good, however, also make it an agency for evil 
unless measures are taken to prevent its misuse. To prevent 
the postal service from being used as a conduit for dumping 
injurious and harmful matter into millions of homes, and to keep 
it from serving as a means of consummating fraudulent and 
unlawful acts, Congress has passed a substantial body of legisla- 
tion. These laws are manifestly designed for the protection 
of the public and not of the postal service itself. They are de- 
signed to protect the public from the misuse of the mails. They 
are unmistakably police regulations for they aim squarely at 
the protection of the public health, morals, safety, and good 
order. This legislation may be briefly analyzed and described 
before an examination of its constitutional basis and limits is 
entered upon. 

1. Obscene Literature. Since the regulation of private 
morals is by the division of power between the nation and the 
states left to the latter, there was, of course, no reason why 
Congress should concern itself with the problem of obscene 
literature until it became clear that the mails or the channels 
of commerce were being used as a means of circulating the ob- 
noxious matter. Federal legislation relating to obscene literature 
began with the Tariff of 1842, a provision of which forbade the 
importation into this country of obscene literature or pictures. 31 

inflammable articles, fatty substances, or live or dead animals, and sub- 
stances which exhale a bad odor. It has never been supposed that the 
exclusion of these articles denied to their owners any of their constitu- 
tional rights." Public Clearing House v. Coyne, (1903) 194 U. S. 497, 
48 L. Ed. 1092, 24 S. C. R. 789. 

30 For summary of articles, which, under the laws of foreign countries, 
may not be sent through the mails into such countries, see U. S. Official 
Postal Guide, 1919, 137 ff. , . , 

31 Act of Aug. 30, 1842, 5 Stat, at L. 562, Sec. 28. For the develop- 
ment of the policy of excluding obscene literature from interstate com- 
merce see Cushman, op. cit, 3 Minnesota Law Review 388. 



410 MINNESOTA LAW REVIEW 

It was not until 1865 that Congress took steps to exclude matter 
of this description from the mails ; 32 and the first really effective 
legislation for this purpose seems to have been the Act of March 
3, 1873. 33 Various amendments to this law have been passed 
extending its scope and strengthening its provisions. 34 At the 
present time there are two sections of the United States Criminal 
Code dealing with this subject. 35 By the first of these provisions 
obscene and indecent writings, letters, pictures, or printed matter 
of any sort are declared to be unmailable as well as all contra- 
ceptive devices and information. 36 Such matter may not be con- 
veyed in the mails nor delivered by any post office employee. 
To deposit such matter in or to take it from the mails is made 
a criminal offense. The second provision makes non-mailable 
under severe penalties any mail matter on the outside cover of 
which is found any obscene, scurrilous, libelous, or defamatory- 
inscriptions which would reflect injuriously upon the character 
or conduct of another. 37 While the postal authorities are not per- 
mitted to receive or deliver mail matter known by them to be 
in violation of the provisions just described, they are rigidly 
forbidden to open sealed matter. 38 While authority is given to 
exclude non-mailable matter, there is no power to prevent the 
subsequent circulation through the mails of later issues of the 

32 Act of March 3, 1865, 13 Stat, at L. 507. Amended June 8, 1872, 17 
Stat, at L. 302. 

33 17 Stat, at L. 599. 

34 Act of July 12, 1876, 19 Stat, at L. 90; Act of Sept. 26, 1888, 25 
Stat, at L. 496; Act of May 27, 1908, 35 Stat, at L. 416; Act of Mar. 4, 
1911, 36 Stat, at L. 1339. 

35 Sees. 211, 212, Act of March 4, 1909, 35 Stat, at L. 1129. 

36 "And the term 'indecent' within the intendment of this section shall 
include matter of a character tending to incite arson, murder, or assassin- 
ation." Sec. 211, U. S. Criminal Code. The prohibitions of the act have 
been construed as applicable to the veiled advertisements of prostitutes. 
United States v. Dunlop, (1897) 165 U. S. 486, 41 L. Ed. 799, 17 S. C. R. 
375. 

37 This provision is applicable to the sending of threatening or dun- 
ning inscriptions on packages or cards. United States v. Smith, (1895) 
69 Fed. 971; United States v. Davis, (1889) 38 Fed. 326; United States 
v. Elliott, (1892) 51 Fed. 807; United States v. Simmons, (1894) 61 Fed. 
640. 

38 The inviolability of sealed mail matter from government invasion 
is guaranteed by the fourth amendment to the United States constitution 
which provides, "The right of the people to be secure in their persons, 
houses, papers, and effects, against unreasonable searches and seizures 
shall not be violated. ..." "No law of Congress can place in the 
hands of officials connected with the postal service any authority to invade 
the secrecy of letters and such sealed packages in the mail ; and all regula- 
tions adopted as to mail matter of this kind must be in subordination to 
the great principle embodied in the Fourth Amendment of the Constitu- 
tion." Ex parte Jackson, (1877) 96 U. S. 727, 733, 24 L. Ed. 877. 



THE NATIONAL POLICE POWER 41 1 

excluded publication or to forbid the subsequent use of the mails 
to any persons who have violated these provisions. 39 

While some persons have appeared from time to time to ques- 
tion the constitutionality of the obscene literature acts 40 and 
numerous petitions have been presented to Congress urging their 
repeal ostensibly on constitutional grounds, 41 there has never been 
any substantial body of opinion to doubt the authority of Con- 
gress to pass them. There has been a considerable number of 
cases in which these acts have been construed and interpreted 42 
and a number of the lower federal courts have declared them to 
be constitutional, 43 but their validity has never been attacked 
before the Supreme Court. 44 

2. Lottery Tickets and Circulars. Although Congress as 
well as the state legislatures at first regarded the lottery as a legiti- 
mate method of public finance, 45 public sentiment condemning 
the institution soon began to make itself felt. In' 1827 Congress 
passed its last act authorizing a lottery 46 and its first act hostile 
to lotteries. 47 This latter statute, however, was not a serious 
blow to lottery enterprises since it merely provided : 

39 The annual report of the postmaster general for 1914 comments 
upon the many requests which come to the post office department for 
action of this sort and points out the limitations upon the power of the 
department in respect thereto ; p. 48. 

40 Schroeder, Obscene Literature and Constitutional Law, passim. See 
also Free Speech Anthology, by the same author. 

41 On February 26, 1878, Congressman Benjamin F. Butler (Mass.) 
presented to the House of Representatives a petition signed by 50,000 per- 
sons protesting against the Obscene Literature Acts and asking their 
amendment in such a manner "that they cannot be used to abridge the 
freedom of the press or of conscience, or to destroy the liberty and 
equality of the people before the law and departments of the government 
on acount of any religious, moral, political, medical or commercial 
grounds or pretexts whatsoever." Congressional Rec. Vol. VII, p. 1340. 
Sixty-three petitions similar in character were presented during the first 

42 See Thomas, Non-mailable Matter, Ch. V; Rogers, op. cit., 48 ff. 

4:5 United States v. Wilson, (1893) 58 Fed. 768; United States v. War- 
ner, (1894) 59 Fed. 355. 

43 Rogers, op. cit., 48 ff. 

44 "For more than thirty years not only has the transmission of 
obscene matter been prohibited, but it has been made a crime, punishable 
by fine or imprisonment, for a person to deposit such matter in the mails. 
The constitutionality of this law, we believe, has never been attacked." 
Public Clearing House v. Coyne, (1903) 194 U. S. 497, 48 L. Fd. 1092, 
24 S. C. R. 789. In an earlier opinion the Supreme Court referred to 
the Obscene Literature Act of 1873 with apparent approval and said, 
"All that Congress meant by this act was, that the mail should not be 
used to transport such corrupting publications and articles. ..." Ex 
parte Jackson, (1877) 96 U. S. 727, 736, 24 L. Ed. 877. 

45 For summary of this early legislation see Thomas, op. cit., Sees. 1-4. 

46 Act of Feb. 22, 1827, 4 Stat, at L. 105. This act authorized the city 
of Washington to include the lands of Thomas Jefferson within, its lottery 
schemes. 

47 Act of March 2, 1827, 4 Stat, at L. 238. 



412 MINNESOTA LAW REVIEW 

"That no postmaster or assistant postmaster shall act as 
agent for lottery offices or under any color of purchase, or other- 
wise, send lottery tickets; nor shall any postmaster receive free 
of postage or frank lottery schemes, circulars, or tickets." 

This mild law, however, very definitely suggests the constitu- 
tional principle upon which our present vigorous anti-lottery 
statutes rest : namely, that Congress may refuse to lend its postal 
facilities or agents in furtherance of lottery enterprises. The 
next congressional attack on lotteries did not occur until 1868, 
when an act was passed providing : 

"That it shall not be lawful to deposit in a post office, to be 
sent by mail, any letters or circulars concerning lotteries, so-called 
gift concerts or similar enterprises, offering prizes of any kind 
on any pretext whatever." 48 

This act, however, provided no adequate means of enforce- 
ment and proved ineffective. 49 In 1872 an act was passed 
which made it unlawful to deposit in the mail or to send by 
mail any letters or circulars concerning illegal lotteries, so- 
called gift concerts, or other similar enterprises, and the 
postmaster general was authorized to issue a fraud order 
against any person who conducted a fraudulent lottery, gift 
concert, etc. 50 Four years later this act was •amended by 
striking out the word "illegal" before lotteries and making the 
exclusion applicable to all lotteries whether forbidden by state 
law or not. 51 The word "fraudulent" was retained, however, in 
the section relating to fraud orders. 52 In 1890 the law was 
amended so as to include lottery advertisements in newspapers 
within its prohibition and to eliminate the word "fraudulent" 
from the clause just mentioned. 53 Under this legislation the 
postmaster general was authorized to prevent by the issuance of 
a fraud order the delivery of registered letters or the payment 
of money orders to persons known to be conducting lotteries or 
fraudulent schemes. By Act of 1895 the department was given 
power in such cases to' withhold ordinary sealed mail matter as 
well as registered letters. 54 The anti-lottery legislation has never 

48 Act of July 27, 1868, 15 Stat, at L. 194. 

49 There was no penalty provided for its violation and no appropri- 
ation to cover the cost of administration. 

so Act of June 8, 1872, 17 Stat, at L. 283. 
si Act of July 12, 1876, 19 Stat, at L. 90. 

52 This was construed to mean that a fraud order could be issued 
against only such lotteries as were actually fraudulent in character. Opin- 
ion of Attorney-General McVeagh, (1881) 17 Op. Atty. Gen. 77. 

53 Act of Sept. 19, 1890, 26 Stat, at L. 465. 

5 4 Act of March 2, 1895, 28 Stat, of L. 964. 



THE NATIONAL POLICE POWER 413 

attempted to prohibit the operators of these enterprises from 
sending innocent matter through the mails. 

While the constitutionality of this legislation has been bitterly 
attacked on various grounds, 55 it has been sustained by numerous 
federal courts 50 and by the United States Supreme Court in two 
important cases 57 the principles of which will be discussed at a 
later point in this article. 58 

3. Fraudulent Matter. The first attempt made by Congress 
to prevent the use of the mails for the circulation of correspond- 
ence relating to fraudulent schemes and enterprises was in 1872. 59 
This act subjected to severe penalty any person who devised any 
scheme or artifice to defraud to be carried on by means of corre- 
spondence through the mails and who so used the mails in 
furtherance of such project. It authorized the postmaster gen- 
eral to withhold registered letters and payment on money orders 
from those who he had reason to believe were using the mails 
for the forbidden purposes mentioned. This law was expanded 
and strengthened by amendment in 1889°° by elaborating the list 
of schemes brought within the prohibition 61 and by forbidding 
persons engaged in the proscribed enterprises to use the mails 

55 For a very able presentation of the case against this legislation see 
the argument of Mr. James C. Carter for the defendants in the case of In 
re Rapier, (1892) 143 U. S. 110, 113, 36 L. Ed. 90. 12 S. C. R. 353. See 
also brief for defendants in Ex parte Jackson, (1877) 96 U. S. 727, 24 L. 
Ed. 877. Also article by Mr. Hannis Taylor entitled, "A Blow at the 
Freedom of the Press," (1892) 155 North American Review 694. Mr. 
Taylor's attack is based largely on the fact that in the Lottery Act of 1890 
the test of the immoral or injurious character of the matter excluded was 
not left to a jury but was determined by tests which Congress established 
in the act itself. 

se In re Jackson (1877) 14 Blatch. (U. S. C. C.) 245, Fed. Cas. No. 
7,124; New Orleans National Bank v. Merchant, (1884) 18 Fed. 841. 

57 Ex parte Jackson, (1877) 96 U. S. 727, 24 L. Ed. 877; In re Rapier, 
(1892) 143 U. S. 110, 36 L. Ed. 90, 12 S. C. R. 353. 

58 Infra, p. 419 ff. 

59 Act of June 8, 1872, 17 Stat, at L. 283. 

60 Act of March 2, 1889, 25 Stat, at L. 873. 

61 The prohibitions of the act were extended to apply to those who 
used the mails "to sell, dispose of, loan, exchange, alter, give away, or 
distribute, supply, or furnish, or procure for unlawful use, any counter- 
feit or spurious coin, bank notes, paper money, or any obligation or 
security of the United States or of any State, Territory, municipality, com- 
pany, corporation, or person, or anything represented to be or intimated 
or held out to be such counterfeit or spurious articles, or any scheme or 
artifice to obtain money by or through correspondence by what is com- 
monly called the 'sawdust swindle,' or 'counterfeit money fraud' or by 
dealing or pretending to deal in what is commonly called 'green articles,' 
'green coin,' 'bills,' 'paper goods,' spurious Treasury notes ; 'United States 
goods,' 'green cigars,' or any other names or terms intended to be under- 
stood as relating to such counterfeit or spurious articles." 



414 MINNESOTA LAW REVIEW 

under an assumed name. 62 In 1895 the scope of the fraud orders 
issued was extended to include all first class mail. 63 While post 
office officials have from time to time recommended the further 
amendment of the anti-fraud statutes to embrace within their 
provisions enterprises not now included, 64 the present legislation 
has proved adequate to put an end to thousands of cheating and 
swindling schemes which had used the mails as the indispensable 
means of getting into touch with their victims. 65 

As in the case of the acts already examined, there has been 
a large amount of litigation over the construction of the anti- 
fraud acts and their applicability to specific schemes or enter- 
prises-. 66 There have been attacks upon the constitutionality of 
the statutes on the ground of the procedure provided for the 
issuance of fraud orders and the courts have laid down certain 
rules respecting the scope and finality of the postmaster general's 
discretion in the matter. 67 Both lower federal courts 68 and the 



62 By a section of this act, the postmaster general is authorized to 
require the personal identification of persons receiving mail matter when 
he has reason to believe that the names or addresses on such matter are 
fictitious. 

es Act of March 2, 1895, 28 Stat, at L. 964. 

64 The annual reports of the postmaster general in recent years have 
repeatedly urged the inclusion within the prohibitions of the law of all 
gambling devices or paraphernalia of any sort. For the text of this pro- 
posed legislation see Report of the Postmaster General for 1914, p. 81. 

65 Data regarding the operation of the law is summarized yearly in 
greater or less detail in the report of the postmaster general. See report 
for 1918, p. 58. 

66 These questions are discussed in detail in Thomas, op. cit., Oh. IV. 
See also Rogers, op. cit, 56. It may be noted that schemes which may be 
included within the prohibitions of the act as "fraudulent" are not merely 
those which would be held fraudulent at common law as involving actual 
misrepresentation as to a past or existing fact, but extend to "everything 
designed to defraud by representations as to the past or present or sug- 
gestions and promises as to the future. ... It was with the purpose of 
protecting the public against all such intentional efforts to despoil and 
prevent the post office from being used to carry them into effect that this 
statute was passed ; and it would strip it of its value to confine it to such 
cases as disclosed an actual misrepresentation as to some existing fact, and 
exclude those in which is only the allurement of a specious and glittering 
promise." Durland v. United States, (1896) 161 U. S. 306, 314, 40 L. Ed. 
712, 16 S. C. R. 508. 

67 It has been held by the Supreme Court that the judgment of the post- 
master general with reference to the issuance of fraud orders must be 
based on facts supported by evidence as to the fraudulent nature of the 
enterprise concerned and may not be based merely upon his personal belief 
that the scheme is fraudulent. A fraud order was held unlawfully issued 
against a concern which claimed to cure disease by the influence of the 
mind because "there is no exact standard of absolute truth by which to 
prove the assertion false and a fraud. . . . We may not believe in the 
efficacy of the treatment to the extent claimed by the complainants, and 
we may have no sympathy with them in such claims, and yet their effec- 
tiveness is but a matter of opinion in any court." American School of 



THE NATIONAL POLICE POWER 415 

United States Supreme Court 69 have held that Congress enjoys 
power under the constitution to pass the legislation in question, 
which does not after all differ in principle from the acts relating 
to obscene literature and lotteries. 

4. Prize Fight Films. By a statute passed in 1912 it is made 
a criminal offense to import from abroad for purposes of public 
exhibition pictures or moving picture films of prize fights or to 
send them in or to receive them from interstate commerce or the 
mails. 70 The only litigation to date respecting the validity of this 
act concerns the provision against importation. 71 There can be 
no doubt whatever that that portion of the act which authorizes 
the exclusion from the mails would be sustained by the Supreme 
Court should its constitutionality be questioned. 

5. Seditious and Treasonable Publications. It will be re- 
called that one of the reasons which led England and other coun- 
tries to make their post offices government monopolies was the 
desire to use the mail facilities for an official espionage on private 
correspondence with a view to discovering who were the enemies 
of the sovereign or his ministers. 72 It is quite natural that this 

Magnetic Healing v. Mc Annuity, (1902) 187 U. S. 94, 47 L. Ed. 90, 23 S. 
C. R. 33. 

The problem of the finality of the action of the postmaster general in 
issuing fraud orders is touched upon in a general article by Professor 
T. R. Powell entitled, Conclusiveness of Administrative Determinations in 
the Federal Government, Amer. Pol. Sci. Rev., Aug. 1907, p. 583. 

For criticism of the broad powers conferred upon the postmaster gen- 
eral by this legislation see Pierce, Federal Usurpation, p. 354. 

68 New Orleans Nat'l Bank v. Merchant, (1884) 18 Fed. 841; Hoover 
v. McChesney, (1897) 81 Fed. 472; United States v. Loring, (1884) 91 
Fed. 881. 

69 Public Clearing House v. Coyne, (1903) 194 U. S. 497, 24 S. C. R. 
789. 

™ Act of July 31, 1912, 37 Stat, at L. 240. 

7i Weber v. Freed, (1915) 239 U. S. 325, 60 L. Ed. 308, 36 S. C. R. 131. 
See Cushman, op. cit., 3 Minnesota Law Review 392. 

72 Hemmeon points out that the proclamation of 1591 making the 
British foreign post a monopoly was issued "in order that the government 
might be able to discover any treasonable or seditious correspondence," 
History of British Post Office, 190. Freund states : "In a royal grant of 
the office of postmaster to foreign parts (July 19, 1632, XIX Rymer's 
Foedera 385) the monopoly is justified by the consideration, how much 
it imports to the state of the King and this realm that the secrecy thereof 
be not disclosed to foreign nations, which cannot be prevented if a 
promiscuous use of transmitting or taking up of foreign letters and 
packets should be suffered.' Cromwell spoke of the Post Office as the 
best means to discover and prevent dangerous and wicked designs against 
the commonwealth," Police Power, Sec. 666, note. See also May, Consti- 
tutional History of England, II, 245 ff. 

"The post office is no longer regarded in England as a means of detect- 
ing conspiracies. Letters passing through the mails may nevertheless be 
opened on the warrant of the secretary of state, but the occurence is 



416 MINNESOTA LAW REVIEW 

early purpose should not be entirely forgotten even in those 
countries in which the secrecy of the mail is now preserved, and 
that in critical times efforts should be taken to prevent the use 
of mail facilities for treasonable or seditious purposes. 73 No 
government can be expected to lend positive aid to those who 
are seeking to accomplish its destruction. It would, of course, 
be unnecessary to forbid specifically the use of the mails for the 
actual execution of a treasonable plot or conspiracy. 74 In time 
of war, however, the United States government has taken steps 
to prevent the circulation through the mails of matter which 
would tend even indirectly to interfere with the success of the 
military preparations or campaigns of the government. During 
the Civil War the exclusion of objectionable matter from mails 
was carried on by the executive arm of the government 75 with- 
out the authority of any statute but with the acquiescence of 
Congress. 76 While there was protest from those subjected to this 
treatment, 77 there seems to have been no litigation arising from 
these executive acts, which were apparently regarded as part of 
the military policy of the government. 78 When the Obscene 
Literature Act of 1872 was passed Congress included in its de- 
scription of proscribed matter "any letter upon the envelope of 
which, or postal card upon which scurrilous epithets may have 

very rare, and would be sanctioned by public opinion only in extreme 
cases." Cooley's Blackstone, Book I, 323, note. 

73 See provisions of the recent Trading with the Enemy Act establish- 
ing a censorship of foreign mail and forbidden communications to foreign 
countries during the period of the war except through the mails. Act of 
Oct. 6, 1917, 40 Stat, at L. 412. 

74 "The overt act of putting a letter into the post office of the United 
States is a matter that Congress may regulate. . . . Intent may make 
an otherwise innocent act criminal, if it is the step in a plot." Badders v. 
United States, (1916) 240 U. S. 391, 36 S. C. R. 367. 

75 These exclusions do not seem to have been carried out by the post 
office department exclusively. This power was exercised by the secretary 
of state on some occasions. This officer withdrew mail privileges from the 
New York Staats Zeitung and from the National Zeitung (New York) in 
1861. Official Records of War of Rebellion, 2nd Series, Vol. 2, 494, 501. 
For instances of such exclusion of newspapers from the mails by mili- 
tary authority see Sen. Doc. No. 19, 37 Cong., 3d Sess. The writer is 
indebted to Professor James G. Randall for this data. 

76 An investigation into the alleged arbitrary acts of the postmaster 
general was conducted in 1862 and 1863 by the Judiciary Committee of the 
House of Representatives. The power claimed by the postmaster general 
was sustained by the committee and no action was taken. Burgess, The 
Civil War and the Constitution, II, 222-3. 

77 An editorial in the New York World for August 18, 1864, denounced 
the espionage upon private correspondence by postal authorities. 

78 See the valuable article by Professor James G. Randall, "The News- 
paper Problem in Its Bearing upon Military Secrecy During the Civil 
War, (1918) 23 Am. Hist. Rev., 303. 



THE NATIONAL POLICE POWER 417 

been written or printed or disloyal devices printed or engraved 
thereon." 79 When this act was amended and broadened in scope 
the next year, however, the phrase relating to "disloyal devices" 
was omitted. 80 The first effective legislation which Congress 
enacted dealing with this problem is found in the Espionage Act 
of 1917. 81 In addition to its general prohibitions the law pro- 
vides that any mail matter which is in violation of any provisions 
of the statute is non-mailable, that any matter "urging treason, 
insurrection, or forcible resistance to any law of the United 
States, is hereby declared non-mailable." A heavy penalty is 
inflicted upon those who use or attempt to use the mails for the 
transmission of any matter thus declared non-mailable. 82 In 1918 
this act was amended so as to extend to the postmaster general 
during the period of the war authority to order all mail matter 
to be withheld from persons who, "upon evidence satisfactory 
to him," he concludes are using the mails in violation of any of 
the provisions mentioned above. 83 

This legislation has been much discussed both from the stand- 
point of public policy and from that of constitutional law. It 
seems clear, however, that most of the attacks which have been 
made upon it have been directed in reality not so much at the 
validity of the statute itself as at the administration of it and its 
proper applicability to concrete cases. On the point of constitu- 
tional power to pass the acts in question there can be no serious 
disagreement. The Obscene Literature Acts and the Anti-Fraud 
Acts afford clear precedents ; and the lower federal courts which 
have passed upon the constitutionality of these clauses of the 
Espionage Act have uniformly upheld them. 84 

6. Denial of Postal Facilities Used for Violating Federal 

Law. In at least two of the statutes which have been mentioned, 

Congress has legislated upon the theory that it was proper to 

refuse to allow the postal facilities to be used as an agency in 

the violation of federal law. The Anti-Fraud Act at the present 

time includes within its prohibitions the use of the mails to dis- 

"Act of June 8, 1872, 17 Stat, at L. 302. 
so Act of March 3, 1873, 17 Stat, at L. 599. 
si Act of June 15, 1917, 40 Stat, at L, 230. 

82 The provision in the Trading with the Enemy Act for the licensing 
by the postmaster general under direction of the president of foreign 
language newspapers is not primarily a postal regulation, since the right 
was denied to unlicensed papers not merely to mail but to publish or cir- 
culate in any other way. Act of Oct. 6, 1917, 40 Stat, at L. 425. 

83 Act of May 16, 1918, 40 Stat, at L. 553. 

8* Masses Publishing Co. v. Patten, (1917) 244 Fed. 535; same, (1917) 
245 Fed. 102; Jeffersonion Publishing Co. v. West, (1917) 245 Fed. 585. 



418 MINNESOTA LAW REVIEW 

pose of, circulate, or procure counterfeit money or securities of 
the United States. 85 Congress possesses, of course, adequate 
power to punish the counterfeiting of its own currency and securi- 
ties and those of foreign countries and has long since exercised 
this power. 86 By the provision dealing with the transmission of 
counterfeit money or securities through the mails, Congress has 
merely refused to permit the United States Post Office to act as 
an unwitting accomplice of those committing or intending to 
commit a crime against the laws of the United States. In the 
same way it will be recalled Congress made it unlawful to trans- 
mit through the mails any matter which was in violation of any 
provision of the Espionage Act. 87 Upon the same theory rests 
the statutory provision declaring non-mailable any publication 
which violates any copyright granted by the United States. 88 

It would, of course, be possible to expand very greatly the 
amount of this type of legislation and there have been proposals 
from time to time to that effect. 89 It would be entirely possible 
to penalize the use of the mails as an aid in the violation of the 
prohibition amendment, the Sherman Act, or for the purpose of 
soliciting unlawful campaign contributions in congressional elec- 
tions. It is difficult to imagine any offense against the United 
States government in the furtherance of which the criminal might 
not make use of the facilities of the postal service. The power 
of Congress to punish the use of the mails for these unlawful 
purposes seems to be quite unassailable. As a matter of practical 
expediency, however, this sort of legislation is not apt to be 
resorted to unless the systematic use of the postal facilities . is 
so vital to the accomplishment of the crime that under normal 
circumstances the post office affords a more or less effective 
means for its detection or prevention. 90 

85 Supra, note 61. 

86 These prohibitions are to be found in Chapter VII of the United 
States Criminal Code, Act of March 4, 1909, 35 Stat, at L. 1115. 

87 Supra, p. 417. It is also made a criminal offense to send through the 
mails any threats against the life of the president of the United States. 
The same provision penalizes the making of such threats orally or in any 
other way. Act of Feb. 14, 1912, 39 Stat, at L. 919. 

88 Act of March 3, 1879, 20 Stat, at L. 359. Section 320 of the Crimi- 
nal Code makes it a penal offense to import from abroad through the 
mails any publication which violates copyright laws or infringes rights 
accruing thereunder. Act of March 4, 1909, 35 Stat, at L. 1083. 

89 It has been proposed, for example, to penalize the use of the mails 
for the purpose of securing false witnesses, suborning perjury and like 
offenses. A bill to this effect was introduced in the Senate in 1917. See 
Sen. bill 2523, Cong. Rec, June 27, 1917, Vol. 55, p. 4337. 

90 No useful purpose would be served by making it a crime to mail a 
letter in furtherance of such an offense against the criminal laws of the 



THE NATIONAL POLICE POWER 419 

The Question of Constitutionality 

The foregoing analysis has sketched briefly the principal types 
of statutes by which Congress has sought to prevent the federal 
postal system from being used as a means of distributing in- 
jurious matter or of aiding the consummation of injurious and 
illicit transactions. In every case in which the constitutionality 
of any of these acts has been passed upon by a court it has been 
sustained; and there can be no doubt but that those acts which 
have not been subjected to judicial scrutiny rest upon the same 
or equally firm constitutional grounds. The very unanimity with 
which the courts have declared that Congress has not gone too 
far in enacting these laws has, of course, precluded the making 
of any authoritative judicial pronouncement as to just how far 
Congress may still go in the exercise of this power. The ques- 
tion whether Congress has exhausted its authority in this particu- 
lar legislative field remains open for speculation. It is a question 
which may conveniently be dealt with under two headings : 
first, the constitutional basis for the power now under consider- 
ation ; this will involve a review of the various theories advanced 
in support of that power; and second, the constitutional limita- 
tions within which the power must be exercised. Consideration 
of these two problems may aid in reaching a conclusion as to 
whether Congress may go still further in prohibiting the use of 
the mails as an agency for evil or undesirable ends, or in en- 
couraging such use for purposes beneficial to the public welfare. 

1. Constitutional Basis of Legislation. Opinions regarding 
the power of Congress to exclude different classes of things from 
the mails range all the way from the view that Congress has 
no power to exclude anything which was mailable at the time the 
federal constitution was formed 91 to the equally extreme view 
that Congress may exclude from the mails anything it pleases. 92 
But the theories on which the right of exclusion has most com- 
monly been sustained are two in number. 

United States as peonage, or piracy, or other crimes where the use of 
postal facilities would form a rare or very minor means of criminal 
accomplishment. 

01 "So long as the duty of carrying the mails is imposed upon Congress, 
a letter or a packet which was confessedly mailable matter at the time of 
the adoption of the constitution, cannot be excluded by them, provided the 
postage be paid and other regulations be observed." Brief for defendants 
in Ex parte Jackson, (1877) 96 U. S., 727, 24 L. Ed. 877. The view was 
expressed, however, that matter which had become mailable since that 
time could be excluded. 

y2 See infra, p. 421. 



420 J MINNESOTA LAW REVIEW 

(a) In the first place, there has been a general recognition 
of the fact that a very special duty and responsibility rests upon 
Congress to protect the public from certain types of evils or 
injuries to which the very existence of an efficient postal system 
would otherwise expose them. As has been pointed out elsewhere, 
Congress has long since recognized and assumed a similar re- 
sponsibility in respect to foreign and interstate commerce. 93 If 
Congress possesses such police power by reason of its authority 
over a commerce which it does not create but merely regulates, it 
cannot be doubted that equal or even greater authority would 
be derived from the power to "create" or "establish" a postal 
system. It may be urged, in fact, that while the constitutional 
authority arising from the commerce and postal clauses is ample 
in both cases to support this type of legislation, a much stronger 
moral obligation rests upon Congress to protect the public health, 
morals, safety, and general welfare from the misuse of the mails 
than from the misuse of the facilities of interstate commerce. 
Two considerations support this view. The first is that the 
responsibilities arising from the fact of creation, ownership, 
and operation of an institution may be reasonably regarded 
as greater than those arising from a power merely to "regulate" 
a system or institution which Congress did not create, does not 
own nor operate, and cannot destroy. The second is that the 
ordinary individual is in a much better position to protect him- 
self from the misuse of interstate commerce than from the misuse 
of the mails. This is due to the essential differences between the 
two systems. Under normal circumstances the participation of 
the individual in the transactions of interstate commerce and 
his relations to interstate carriers result from a voluntary con- 
tractual relationship. Spurious or even harmful products may 
be sent to him, but rarely without his having bargained for the 
shipment of any products at all. A very different situation exists 
with respect to the postal system. At practically negligible cost 
to the sender, grossly indecent letters or papers could be brought 
several times a day to the door of any person by an employee of 
the United States government and this without the previous 
knowledge and against the wishes of the recipient. Without 
depriving himself of all the conveniences arising from the regu- 
lar visits of the postman a person might be quite unable to pro- 
tect himself against this sort of abuse. It is not unreasonable to 

93 Cushman, op. cit, 3 Minnesota Law Review .381 ff. 



THE NATIONAL POLICE POWER 421 

assert that the governmental authority which thus penetrates 
daily the very homes of the people must recognize a commensu- 
rate duty of protecting those homes from the distribution of 
noxious matter. Even those who have been solicitous that the 
national government should not attempt to extend its authority 
over subjects commonly left to state control have looked upon 
the sort of national police regulations now under consideration 
as not only harmless but highly desirable. 94 Assuming for the 
sake of argument that every citizen enjoys a well-protected con- 
stitutional right to the unrestricted and equal use of the mails, 
it would be useless to argue that the regulations in question un- 
constitutionally abridge that right, since no one can be said to have 
a right to circulate matter which is injurious to the public health, 
morals, or safety. 95 Most of the court decisions in which the 
validity of this type of legislation has been considered have laid 
strong emphasis upon the right and duty of Congress to protect 
the public welfare from the abuse of mail privileges. 96 

(b) There are those, however, who go beyond this admittedly 
conservative view of the power of Congress to exclude various 
types of matter from the mails which has just been discussed. 
They take the position that Congress may not only make it unlaw- 
ful to send through the mails such things as are dangerous to 
health, morals, or safety, either intrinsically or in the use to which 
they are to be put, but may also deny mail privileges to things 
or to transactions which do not conform to congressional views 
of public policy. In other words, the power of exclusion is held 
to extend not only to things which are actually or potentially 
injurious or dangerous but to those the circulation of which in 
the judgment of Congress would be undesirable or unwise. 97 

94 See discussion of Mr. Bryan's views on this point, infra p. 436. 

95 Lottery Case, (1903) 188 U. S. 321, 23 S. C. R. 321, 47 L. Ed. 492; 
Hoke v. United States, (1913) 227 U. S. 308, 33 S. C. R. 281, 57 L. Ed., 
523. 

96 United States v. Journal Co., (1912) 197 Fed. 415; Knowles v. 
United States, (1909) 170 Fed. 409; In Jeffersonion Publishing Co. v. 
West, (1917) 245 Fed. 585, the court said in respect to the exclusion of mail 
matter in violation of the Espionage Act, "Had the postmaster general 
longer permitted the use of the postal system which he controls for the 
dissemination of such poison, it would have been to forego the opportunity 
to serve his country afforded by his lofty station." 

97 An extreme statement of this view is found in the argument for the 
government in Lewis Publishing Co. v. Morgan, (1913) 229 U. S. 288, 57 
L. Ed. 1190, 33 S. C. R. 867. 

It was stated in substance that the postal power is one which "conveys 
an absolute right of legislative selection as to what shall be carried in the 
mails, and which therefore is not in any wise subject to judicial control, 



422 MINNESOTA LAW REVIEW 

The considerations advanced in support of this position may be 
briefly reviewed. 

At the outset it must be admitted that Congress in establishing 
a postal system must of necessity determine what is to be regarded 
as mail matter and what is not. Obviously not everything need 
be transmitted through the mails unless the post office is to per- 
form all the functions of a common carrier. This necessity of 
determining what shall constitute mail matter carries with it the 
power and duty of setting up classifications as to various types 
of matter. No positive obligation rests upon the government to 
carry any particular class of articles. Should Congress decide 
that nothing but sealed letters of a certain size and weight may 
be sent through the mails, there could be no doubt of its con- 
stitutional authority so to legislate. The Supreme Court has 
recognized that Congress in establishing a postal system may 
properly set up classifications of matter in respect to mailing 
privileges. 

"In establishing such a system, Congress may restrict its use 
to letters and deny it to periodicals ; it may include periodicals and 
exclude books ; it may admit books to the mails and refuse to 
admit merchandise ; or it may include all of these and fail to 
embrace within its regulations telegrams or large parcels of 
merchandise, although in most civilized countries of Europe these 
are also made a part of the postal service." 98 

This power of classification arises from the fact that Congress 
creates, owns, and operates the postal system and that in exer- 
cising this power of classification Congress may properly give 
effect to its own conceptions of public policy. Its position is that 
of a proprietor; and it is under no obligation to lend the use of 
its property for purposes which it regards as unwise and unde- 
sirable, nor is it prohibited from extending the use of its mail 
facilities on especially favorable terms to those who will make use 
of them for the promotion of constructive ideas of public policy. 
In short, Congress may not only discourage certain uses of the 
mails which it deems contrary to public policy but it may also 
stimulate and encourage other uses of the mails which it regards 
as helpful or beneficial to the national welfare. From the prac- 
tical point of view, the latter method would of the two seem to 

even although in a given case it may be manifest that a particular exclu- 
sion is but arbitrary, because resting on no discernable distinction, nor 
coming within any discoverable principle of justice or public policy." 

98 Public Clearing House v. Covne, (1903) 194 U. S. 497, 48 L. Ed. 
1092, 24 S. C. R. 789. 



THE NATIONAL POLICE POWER 423 

be easier of execution as well as less open to criticism; and 
Congress has employed it in numerous instances. The most 
conspicuous examples are the special privileges extended to peri- 
odical literature under the statutes creating second class mailing 
privileges, ,J<J the extension of the franking privilege to the 
speeches of members of Congress printed in the Congressional 
Record, 100 and the act providing for the free transmission 
through the mails of reading matter printed in raised characters 
for the use of the blind. 101 

If it is true that the relationship of the government to the 
post office partakes largely of proprietorship, it would follow that 
the, use of the mail service by the individual is a privilege rather 
than a constitutional right. 102 This seems to be recognized by the 
decisions of the courts either directly or by implication. 103 It 
constitutes an important difference between the rights of the 
individual to engage in interstate commerce and to u?e th? mails. 
There is without question a constitutionally protected right of 
the ci izen to engage in interstate commerce, subject, of course, 
to such rules and provisions as Congress may impose by virtue 
of its power to regulate that commerce. 104 Congress may control 
the exercise of that right ; but it may not destroy it entirely. 105 
The postal facilities, however, come into' being only at the dis- 
cretion of Congress ; and neither the refusal of Congress to create 
them or expand them nor its complete withdrawal of them would 
violate an affirmative right guaranteed by the constitution. 106 
It was this distinction between the relation of the individual to 
the postal service and to interstate commerce which the Supreme 

99 Act of March 3, 1879, 20 Stat. 359 and subsequent amendments. 

100 Act of March 3, 1875, 18 Stat, at L. 343. 

101 Act of April 27, 1904, 33 Stat, at L. 313 permits the free transmis- 
sion of literature in raised characters to and from public institutions or 
libraries. Act of Aug. 24, 1912, 37 Stat, at L. 551 extended the privilege to 
all periodicals in raised characters irrespective of destination. 

102 p or valuable theoretical discussion of distinction between "rights" 
and "privileges," see Hohfeld, Fundamental Legal Conceptions as Applied 
in Judicial Reasoning, (1913) 23 Yale Law Journal 16. 

103 People's U. S. Bank v. Gilson, (1905) 140 Fed. 1, 5; Missouri 
Drug Co. v. Wyman, (1904) 129 Fed. 623. 

104 United States v. Del. & Hudson Co., (1908) 164 Fed. 215, reversed 
on other grounds in 213 U. S. 366. 

105 There is no decision of the Supreme Court squarely on this point 
since Congress has never tried to exercise such power of destruction. The 
reasoning of the Supreme Court in United States v. Del. & Hudson Co., 
supra, certainly lends support to this view. 

106 "A citizen of the United States as such has a right to participate in 
foreign and interstate commerce, to have the benefit of the postal laws 
.. . . Cooley, Principles of Constitutional Law, 273. Italics are the 
writer's. 



424 MINNESOTA LAW REVIEW 

Court apparently had in mind in the Jackson case, when, after 
upholding- the authority of Congress to exclude lottery circulars 
from the mails, it declared : 107 

"But we do not think that Congress possesses the power to 
prevent the transportation in other ways, as merchandise, of 
matter which it excludes from the mails." 

This important distinction between a privilege and a right 
is one which is clearly recognized in our constitutional law; and 
there is plenty of precedent and authority for the view that in 
dispensing privileges which it has a right to withhold entirely 
the government may classify the recipients in order to give effect 
to its views respecting public policy, even though such classifi- 
cations would be open to constitutional attack if applied to those 
enjoying a constitutional right. In the disposal of public lands 
Congress may properly pursue a constructive policy of encourag- 
ing homestead development. 108 Aliens seeking admission to the 
United States or seeking the privileges of American citizenship 
may be classified by Congress in ways which would seem arbitrary 
if the persons subjected to such discriminations had any constitu- 
tional right to demand of this government the thing they were 
seeking. 109 It is well established that since no one has a right to 
perform work for the United States government Congress may 
provide that those who do enjoy that privilege may be subjected 
to the requirement of the eight-hour day for employees, 110 al- 
though the right of a state to establish a general eight-hour day 
for all labor as an exercise of the police power must still be 
regarded as open to the most serious question. 111 The establish- 
ment of similar classifications by the various states in respect to 
public work has been sustained. 112 The United States Supreme 
Court has held, in fact, that while a state may not under its 

107 (1877) 96 U. S. 727, 735, 24 L. Ed. 877. 

108 See the Homestead Act of May 20, 1862, and subsequent legislation 
of similar nature. 

109 See pamphlet, "Naturalization Laws and Regulations" revised to 
October 10, 1919, published by United States Dept. of Labor. It is not 
intended to suggest, however, that aliens applying for citizenship may not 
be classified along lines much more arbitrary than would be permissible 
if they were citizens applying for some other privilege. 

110 Act of Aug. 1, 1892, 27 Stat, at L. 340, upheld in Ellis v. United 
States, (1906) 206 U. S. 246, 51 L. Ed. 1047, 27 S. C. R. 600. 

111 This would seem to be suggested by the fact tnat regulations of 
the hours of labor are still upheld, if at all, mainly upon grounds of pro- 
tection to health. See Bunting v. Oregon, (1917) 243 U. S. 426, 37 S. 
C. R. 435, 61 L. Ed. 830 upholding the Oregon Ten Hour Law. It is 
doubtful if an eight hour law could be sustained on this basis. 

n2Atkin v. Kansas, (1903) 191 U. S. 207, 24 S. C. R. 124, 48 L. Ed. 
148. 



THE NATIONAL POLICE POWER 425 

police power prevent the employment of aliens by private em- 
ployers of labor, 113 it may discriminate against aliens when it 
comes to work done for the state itself. 114 The right to contract 
freely with other persons for the performance of labor is a right 
which cannot be denied by the state ; but the right to be employed 
on the public work of the state itself is not a right at all, but a 
privilege. 

Enough has been said to make clear that the power of Con- 
gress over the postal system is broader and more complete than 
over an institution or a system in respect to which its relation is 
not that of creator, owner, and operator. It is equally obvious 
that the so-called right of the individual to use the mails is not 
a right guaranteed to him by the constitution, such as the right 
to engage in interstate commerce or the right to be tried for 
crime only by a jury of his peers; it is a privilege the length 
and breadth of which is determined by a congressional discretion 
broad enough to allow general considerations of public policy 
to dictate the terms upon which it may be enjoyed. 

It would, however, be entirely erroneous to assume that be- 
cause Congress may for reasons of public policy set up classi- 
fications as to the purposes for which it is willing to allow the 
postal service to be used, it may make any and all classifications 
it chooses, no matter how arbitrary. The fact that Congress is 
under no constitutional compulsion to create a postal system at 
all does not mean that it may refuse to transmit in the system 
it has created the literature of one religious sect, or a particular 
political party. If it allowed the mailing of letters at all, it 
could not exclude love-letters and admit letters relating to the 
business of coal-mining. This is, of course, merely to say that 
although in the exercise of its power over the postal system Con- 
gress may give effect to its views of public policy, it must at all 
times keep its legislation within certain constitutional limits. The 
character and operation of those constitutional limits may now 
be examined. 

Constitutional Limitations Upon Legislation 115 
In classifying the uses and purposes to which it is willing to 
extend the privileges of the mails, Congress is subject to two im- 

n3 Truax v. Raich, (1915) 239 U. S. 33, 36, S. C. R. 7, 60 L. Ed. 131. 
ii^Heim v. McCall, (1915) 239 U. S. 175, 60 L. Ed. 200, 36 S. C. R. 

78 

11 5 The constitutional prohibition in the fourth amendment against 
unreasonable searches and seizures (supra, p. 410) is of course a limitation 



426 MINNESOTA LAW REVIEW 

portant constitutional limitations. One of these is the prohibition 
against the passing of any law abridging the freedom of religion 
or the press ; 116 the other is the more general prohibition against 
deprivation of liberty or property without due process of law. 117 

1. Freedom of Religion and the Press. It must be borne in 
mind that Congress is forbidden by the first amendment to the 
constitution not merely to interfere by direct and positive action 
with freedom of religion and of the press, but it is forbidden also 
to use its granted powers in such a way as to abridge those 
fundamental rights. 118 It does not matter, therefore, how abso- 
lute or unlimited the power of Congress over the postal service 
might be, that power cannot be exercised to abridge religious 
freedom or to limit the freedom of the press. It does not, how- 
ever, follow that no restraint may be placed upon the circulation 
of matter through the mails because of a possible abridgment of 
these rights. Neither freedom of religion nor freedom of the 
press is an absolute and unqualified right which may be set up 
against every conceivable governmental encroachment. They are 
both alike subject to reasonable restrictions in the interests of 
the public safety and morals and general welfare. 119 Religion 
may not act as a cloak to protect polygamy from being attacked 
as. subversive of public morals ; and the exclusion from the mails 
of matter designed to promote the spread of polygamy on 
grounds of religion could no more be attacked as an abridgment 
of religious freedom than could a direct law which suppressed 
polygamy entirely as immoral be attacked as such an abridg- 
ment. 120 So also the same power which justifies the penalizing 
of treasonable or seditious utterances or publications would nat- 
urally extend to the denial of mail facilities to matter of this char- 
acter, nor could there be alleged any interference with the 
freedom of the press. 121 

upon every exercise of the postal power. This point need not be further 
discussed as it has no peculiar bearing upon the topic under consideration. 

116 "Congress shall make no law respecting an establishment of reli- 
gion, or prohibiting the free exercise thereof ; or abridging the freedom 
of speech or of the press. ..." U. S. Const. Amendment I. 

117 "Nor shall any person ... be deprived of life, liberty, or prop- 
erty, without due process of law." U. S. Const. Amend. V. 

us Monogahela Navigation Co. v. United States, (1893) 148 U. S. 
312, 336, 13 S. C. R. 622, 37 L. Ed. 463. 

119 Freund, Police Power, Sees. 467, 468 ; Willoughby, Constitution, II, 
841 ; Hall, Constitutional Law, 90. 

120 Reynolds v. United States, (1878) 98 U. S. 145, 163, 25 L. Ed. 244. 
i2i In Schenck v. United States, (1919) 249 U. S. 47, 39 S. C. R. 247, 

the Espionage Act was upheld by the Supreme Court as against tne criti- 



THE NATIONAL POLICE POWER 427 

If, however, Congress should attempt to exclude from the 
mails the literature devoted to the propagation of Christian 
Science or Catholicism, or if it should enact that sectarian jour- 
nals should be transmitted free or at lower rates than other 
religious periodicals, there is no doubt but that such legislation 
would be held to violate the freedom of religion. 122 In like 
manner, if a Republican Congress should exclude Democratic 
campaign literature from the mails or refuse to carry it on equal 
terms with other matter of the same class, there would no less 
certainly be a denial of freedom of the press. What the precise 
outside limits may be on the power of Congress to make postal 
regulations affecting the two fundamental rights under discus- 
sion is a question which is not easy to answer. It is a question, 
however, a detailed discussion of which is beyond the limits of 
this article. 123 It may in general be said that postal regulations 
excluding matter from the mails or establishing a preferred class 
of mail matter and founded upon a sound basis of public policy 
cannot be successfully attacked under the first amendment unless 
there is manifest in such legislation an intention unjustifiably to 
abridge the freedom of religion or of the press or unless such 
would be the natural result of its operation. 124 

2. Due Process of Law. While the declaration in the fifth 
amendment that Congress shall not deprive any person of life, 
liberty, and property without due process of law is less definite 
in meaning than the prohibitions upon congressional power which 
have just been discussed, it is a no less effective limitation upon 
Congress in the exercise of all its delegated powers including the 
postal power. It might on casual thought be urged that since the 
government is under no obligation to provide any mail facilities 
at all for the use of the people, no person could conceivably 

cism among others that it unduly abridged freedom of speech. No case 
involving the exclusion of seditious publications from the mails has thus 
far been decided by the Supreme Court. 

122 "There is not complete religious liberty where any one sect is fav- 
ored by the state and given an advantage by law over other sects." Cooley, 
Constitutional Limitations (7th Ed.) 663. 

123 Cooley, Constitutional Limitations, Ch. 12 ; Rogers, op. cit. 98 fr. 
See also Rogers, "Federal Interference with the Freedom of the Press," 
23 Yale Law Journal 559. A valuable discussion of this point is also con- 
tained in Chafee, Freedom of Speech in War Time, (1919) 32 Harvard 
Law Review 932. 

124 "In excluding various articles from the mails, the object of Con- 
gress has not been to interfere with the freedom of the press, or with 
any other rights of the people ; but to refuse its facilities for the distribu- 
tion of matter deemed injurious to the public morals." Ex parte Jackson, 
(1877) 96 U. S. 727, 24 L. Ed. 877. 



428 MINNESOTA LAW REVIEW 

claim that he had been deprived of liberty or property by a statute 
which forbade him the right to use the mails for a specified 
purpose. This theory rests upon the supposed axiom that the 
greater power must include the lesser; and that the power to 
withhold all mail privileges must therefore include the power to 
withhold some or all of those privileges for any reason whatso- 
ever or for no reason at all. There is a certain plausibility to this 
argument which arises from the fact that a private person en- 
gaged in a purely private business certainly does possess exactly 
this power and may discriminate amongst his patrons or among 
those to whom he desires to extend any privilege in any manner 
which seems to him desirable. 125 

It is hardly necessary to point out, however, that the govern- 
ment as a dispenser of privileges which may constitutionally be 
withheld does not enjoy the arbitrary and uncontrolled discretion 
just alluded to. While a person may not be in a position to 
compel the government to extend a privilege at all, he does have 
a constitutional right to enjoy it on equal terms with others who 
stand in the same general relation to the government as he does. 
It may not be a "liberty" within the meaning of the due process 
clause to be able to mail a letter or a book provided nobody else 
can do so. But if the government has created facilities for 
mailing letters and books it is. a "liberty" within the meaning 
of the due process clause to use those facilities on equal terms 
with other persons in the same class. 126 It is in this sense of the 
word that the use of the postal system has been declared to be 
part of the "liberty" secured by the fourteenth amendment against 
deprivation without due process of law. 127 In short, the due 
process clause operates as a limitation upon the power of Con- 

125 A soon as a business comes to take on a public character or be- 
comes "affected with a public interest" this arbitrary power of the pro- 
prietor to discriminate amongst his patrons ceases to exist. 

126 It seems clear that the "equal protection of the law" or protection 
against arbitrary discrimination is an essential part of the guarantee of 
due process of law. "Due process of law within the meaning of the 
Amendment is secured if the laws operate on all alike, and do not subject 
the individual to an arbitrary exercise of the powers of government." 
Giozza v. Tiernan, (1893) 148 U. S. 657, 13 S. C. R. 721, 37 L. Ed. 599. 
Freund, Police Power, Sec. 611. See 6 Ruling Case Law, Sec. 367, 437; 12 
Corpus Juris 1190. 

12 7Allgeyer v. Louisiana, (1897) 165 U. S. 578, 41 L. Ed. 832, 17 S. 
C. R. 427. Cf. Statement in Hoover v. McChesney, (1897) 81 Fed. 472, 
"We think the right to use the mails though in degree much less valuable 
than the use of the transportation lines, would be equally a property right, 
and one which could not be taken away without due process of law." 



THE NATIONAL POLICE POWER 429 

gress to make classifications which are arbitrary in character in 
respect to the enjoyment of mail privileges. 128 

This calls for a brief discussion of what sort of classification 
is to be regarded as arbitrary; for quite obviously many classi- 
fications are not only legitimate but necessary. While there has 
been a great deal of difficulty in deciding in concrete cases the 
precise character of the equality of treatment to which persons 
are constitutionally entitled, there is substantial agreement with 
reference to certain tests by which the validity of statutory 
classifications is to be judged. No one will question, in the first 
place, that no classification would be constitutional in which the 
members of the class singled out for distinctive treatment did 
not differ in some substantial manner from those not included in 
such class. 129 Congress is not apt to violate this principle in 
classifying mailing privileges. But if one could imagine a re- 
quirement that letters going from New York to Chicago should 
pay three cents postage while those going from Chicago to New 
York should pay two cents postage, or a requirement that morn- 
ing newspapers should enjoy postal privileges denied to evening 
papers, there would be no hesitancy in concluding that such 
classifications rested upon no discernible differences between 
those inside and outside the class created. In the second place, 
there is equally unanimous agreement that when a class is created 
by law, the basis of classification must bear some reasonable 
relation to the object sought to be accomplished by the act which 
creates it. 130 Congress could not, for example, provide that 
newspapers printed in foreign languages should be forbidden to 
circulate obscene matter but that papers printed in English should 
be exempt from such prohibition. Such discrimination would be 
void because the basis of the classification, namely, the language 

128 This view is supported by analogy in the rule which restricts the 
right of states or municipalities to discriminate in favor of union labor 
employed on public work. This is held a denial of the equal protection 
of the law even though no one has a right to work for the state. Miller 
v. Des Moines, (1909) 143 la. 409, 122 N. W. 226, 21 Ann. Cas. 207. 2.3 
L. R. A. (N.S.) 815; Fiske v. People, (1900) 188 111. 206, 58 N. E. 985. 
52 L. R. A. 291. 

129 Seaboard Air Line Ry. v. Seegars, (1907) 207 U. S. 73, 52 L. Ed. 
108, 28 S. C. R. 28; Deyol v. Superior Court. (1903) 140 Cal. 476, 74 
Pac 28, 98 A. S. R. 73; Ritchie v. Wyman, (1910) 244 111. 509, 91 N. E. 
695, 27 L. R. A. (N.S.) 994. 

1 30 American Sugar Refining Co v. Louisiana, (1900) 179 U. S. 89, 45 
L Ed. 102, 21 S. C. R. 43; Atchison, etc., R. Co. v. Matthews, (1899) 174 
U. S. 96, 105, 43 L. Ed. 909. 19 S. C. R. 609; Kane v. Erie R. R. Co., 
(1904) 133 Fed. 681, 67 C. C. A. 653, 68 L. R. A. 788; Chicago, etc., R. 
Co. v. Westly, (1910) 178 Fed. 619, 102 C. C. A. 65. 



430 MINNESOTA LAW REVIEW 

in which newspapers are printed, bears no relation whatever to 
the purpose which the statute seeks to serve, the suppression of 
the circulation of indecent matter through the mails. It is not 
enough that the distinction which marks the line of classification 
is one which may properly be made the basis of class legislation ; 
there must be a relevancy between the basis of the classification 
and the particular purpose of the statute which creates that 
classification. 131 

These two protections against arbitrary class legislation have, 
however, a broader application to the classification of mailing 
privileges than the somewhat extreme illustrations used above 
would suggest. It must at all times be borne in mind that the 
power which Congress is exercising in setting up these classi- 
fications is, after all, the power derived from the clause author- 
izing the establishment of post offices and post roads. Statutes 
which aim to protect the national health, safety, and morals by 
excluding various things from the mails are postal regulations 
first and police regulations second. It follows, therefore, that 
when a person is forbidden to use the postal service for a certain 
purpose, he has a right to demand that the basis of classification 
bear a reasonable and substantial relationship not primarily to 
the general welfare of the country but to such aspects of the 
general welfare of the country as may properly be affected by 
Congress in the exercise of its postal power. When the Supreme 
Court declared that a postal regulation in order to be constitu- 
tional must treat alike "those who stand in the same relation to 
the government," 132 it meant the "same relation" in respect to 
the power of the government to exercise the postal authority and 
not in respect to liability to military service, the payment of 
federal taxes, or any other irrelevant consideration. 

This leads, then, to a brief consideration of what the tests 
of relevancy must be between the postal power of Congress and 
the classifications of postal privileges which Congress may 
set up for the purposes of formulating national public policy and 
exercising a national police power. There can be no doubt that 
any classification which aimed at the protection of the postal 
system from injury or" obstruction or was designed to promote 
its efficiency would rest upon a basis intimately and immediately 

"I State v. Loomis, (1893) 115 Mo. 307, 22 S. W. 350, 21 L. R. A. 789; 
State v. Currens, (1901) 111 Wis. 431, 87 N. W. 561, 56 L. R. A. 252. 

1 32 Public Clearing House v. Coyne, (1903) 194 U. S. 497, 48 L. Ed. 
1092, 24 S. C. R. 789. 



THE NATIONAL POLICE POWER 431 

connected with the postal power. It is equally certain that dis- 
criminations which sought to protect the public from the circu- 
lation through the mails of noxious or dangerous matter or from 
the consummation of injurious transactions which thrive on 
postal facilities would also bear a definite relation to the postal 
power. In neither of these cases could one complain that he had 
been subjected to discrimination the basis of which was irrelevant 
to the postal power. It is the belief of the writer that Congress 
may go still further and may set up classifications in respect to 
the use of postal facilities which are based merely upon con- 
gressional ideas of public policy when that public policy is one 
which is related to the development of functions which a postal 
system may naturally and reasonably be expected to perform or 
of interests which it may properly be used to promote. The 
postal service must be regarded not merely as an agency which 
exists for the purpose of performing messenger boy service for 
individuals but as an institution which actively and positively 
promotes the spread of intelligence as to current affairs, as well 
as to other matters of general interest. This is the basis upon 
which the special second class mail privileges are to be justified, 
although the Supreme Court has expressed its belief that the 
conferring of these privileges was "at least in form, a discrimi- 
nation against the public generally." 133 In other words, the dis- 
crimination rested upon a basis definitely related to a public 
policy or benefit which it was natural and proper for Congress to 
promote through its postal system. It was in this light that the 
Supreme Court viewed the regulations imposed upon newspapers 
and periodicals by the Newspaper Publicity Act of 1912. 134 One 
of the provisions of this statute will be discussed at a later 
point; 135 but it may be noted here that the prohibitions placed 
upon publications enjoying second class mailing privileges against 
printing editorial or other reading matter for which money is 
received without marking it "advertisement" are regarded by 
the Court as part and parcel of the congressional policy that the 
privileges thus extended to. publications should be used primarily 

133 Lewis Publishing Co. v. Morgan, (1913) 229 U. S. 288, 304, 57 L. 
Ed. 1190, 33 S. C. R. 867. 

It is on this basis that the special mailing privileges accorded liter- 
ature for the blind (supra p. 1423) may be sustained: They serve to aid the 
dissemination of intelligence amongst a group otherwise restricted in 
respect to such advantages. 

134 Act of August 24, 1912, 37 Stat, at L. 553. 

1 35 Infra, p. 438. 



432 MINNESOTA LAW REVIEW 

for the "dissemination of information regarding current events" 
and only incidentally for the circulation of advertising matter. 
It is, therefore, the kind of requirement that may properly be 
imposed. 136 But should Congress attempt to promote in this 
manner a public policy unrelated to the natural and customary 
functions and purposes of the postal system, a classification so 
founded would be arbitrary and unreasonable and would in con- 
sequence violate due process of law, — as well as be an exercise 
by Congress of a power not conferred by the constitution. 

By way of summary it may be suggested that by classifying 
the uses to which it will allow the mails to be put, Congress 
exercises a generous police power for the protection of the public 
welfare from such evils as would be fostered and promoted by 
an entirely unrestricted use of postal privileges. It also enables 
Congress to promote a constructive public policy in respect to 
such matters as fall within the range of national interests which 
the postal system may properly be expected to serve. In short, 
these classifications may be established to prevent the misuse and 
to promote the most beneficial use of the postal service. But any 
discrimination in respect to mail privileges, no matter how com- 
mendable in purpose, which is not based upon some actual dif- 
ference between the classes created in their relation not to the 
national welfare but to the postal service, would be arbitrary 
and unconstitutional. 

III. Regulations Denying the Use of Mails for Purposes 
of Violating or Evading State Law 

It would seem fairly clear that if Congress may with propriety 
classify the uses to which the postal system may be put for the 
purposes which have just been examined, it would be equally 
legitimate to provide that those facilities should not be used for 
the purpose of evading or violating state law. Legislation anal- 
ogous in character has been sustained as a proper exercise by 
Congress of the power to regulate interstate commerce, 137 upon 
principles applying with equal or greater force to postal power. 

The first proposal to adopt such a regulation of the mails 
seems to be that made by Calhoun at the time of the famous 

136 Cf. statement of Cooley : "The power to establish postoffices in- 
cludes everything essential to a complete postal system under federal con- 
trol and management, and the power to protect the same by providing for 
the punishment as crimes of such acts as would tend to embarrass or de- 
feat the purpose had in view in their establishment." Principles of Con- 
stitutional Law, 95. 

137 -The Webb-Kenyon Act. See Cushman, 3 Minnesota Law Review 
406 ff. 



THE NATIONAL POLICE POWER 433 

controversy in 1836 as to the power of Congress to exclude from 
the mails incendiary and abolitionist publications. 138 Believing 
that the absolute exclusion from the mails of the objectionable 
matter would abridge the freedom of the press, Calhoun proposed 
it should be made unlawful for any postmaster to receive and 
send on through the mails any publication addressed to a desti- 
nation in which its circulation was unlawful. It was made a 
penal offense to deliver such mail matter to any person not 
authorized by the local authorities to receive it. 139 This bill was 
amended so as to make it unlawful for any postmaster to deliver 
publications the circulation of which was forbidden by local 
law. 140 The bill failed of passage; but the discussions in Con- 
gress upon its constitutionality were long and interesting. 141 

It has already been seen that the second statute excluding 
matter relating to lotteries from the mails confined its prohibition 
to "letters or circulars concerning illegal lotteries, so-called gift 
concerts, or other similar enterprises." 142 The purpose here 
seems to have been to make the illegality of the transmission of 
this matter contingent upon the illegality under state law of the 
enterprise to which it related. Such transmission would be un- 
lawful even though lotteries might not be prohibited either in 
the state in which the circulars were mailed or in the state into 
which they were sent. In other words, the law would be violated 
by sending from one state to another in both of which lotteries 
were lawful, matter relating to a lottery in a remote state where 
such an enterprise was forbidden. This is not a case, therefore, 
in which matter is excluded from the mails because of the ille- 
gality of its origin 143 nor because it is to be used for unlawful 
purposes at its destination, 144 but because the enterprise which 

138 On December 2, 1835, President Jackson had sent a message to 
Congress urging the passing of legislation to prevent the circulation 
through the mails in the slave states of abolitionist literature. It was 
felt that such reading matter might stir up slave insurrection. Richard- 
son, Messages and Papers of the Presidents, III, 177. This called forth 
extended discussion of the entire problem. 

139 12 Debates of Cong. 383. 

1 40 12 Debates of Cong. 1720. 

1*112 Debates of Cong. 26-23, 1103-1108, 1136-1153. 1155-1171. For a 
summary of this discussion see Rogers, op. cit., 103-115, Willoughby, 
op. cit., II, 786. 

1*2 Act of June 8, 1872, 17 Stat, at L. 283. 

143 For legislation based on this principle see the Lacey Act of May 
25, 1900, 31 Stat, at L. 188, which excludes from interstate commerce 
game killed in violation of state law. See Cushman, op cit., 3 Minne- 
sota Law Review 408. 

144 As is the case in the Webb-Kenyon Act and the act excluding liquor 
advertisements from the mails when addressed to states forbidding their 
circulation. See note 146 infra. 



434 MINNESOTA LAW REVIEW 

certain states have forbidden is of such a character that it thrives 
definitely and immediately upon the circulation through the mails 
of matter advertising and promoting it, no matter what the pre- 
cise locality may be in which that circulation takes place. The act 
would, therefore, seem to fall squarely within the general prin- 
ciple of the legislation aimed to prevent the mails being used as 
an agency for the violation of state law. 

Finally Congress has applied this same principle in its recent 
act making unlawful the sending by mail "of liquor advertisements 
into states in which it is unlawful to advertise or solicit orders 
for- intoxicating liquor. 145 While this act differs somewhat from 
the Webb-Kenyon Act, the question of its constitutionality prob- 
ably would be settled by the doctrine of the case in which the 
earlier legislation was sustained. 146 Its constitutionality has not 
thus far been questioned. 147 

IV. Proposals that Conformity to General Police Regu- 
lations Be Made Price of Enjoyment 
of Mail Facilities 

In the discussion thus far there have been considered the 
various classifications of postal privileges based upon the nature 
of the matter excluded or the character of the uses to which the 
postal facilities were to be put. A discussion of the police power 
which Congress may exercise under the postal clause would be 
incomplete without some comment upon the proposals which have 
sometimes been made that postal facilities should be withheld 
entirely or in large part from persons who would not conform 
to various congressional mandates in respect to public policy and 
national welfare. It is perfectly obvious that there is a great 
difference between forbidding any person to send obscene litera- 
ture through the mails and forbidding any person who publishes 

i« Act of March 3, 1917, 39 Stat, at L. 1069. 

146 The Webb-Kenyon Act made it unlawful to ship intoxicating 
liquors in interstate commerce which are "intended, by any persons inter- 
ested therein, to be received, possessed, sold, or in any manner used" in 
violation of the laws of the state of their destination. There was no 
penalty, however, for violation ; violators merely being placed at the mercy 
of the state authorities. Violation of the Liquor Advertisement Act is 
made a crime against the United States punishable by fine or imprison- 
ment. The validity of the Webb-Kenyon Act was upheld by the Supreme 
Court in Clark Distilling Co. v. Western Maryland Ry Co., (1917) 242 U. 
S. 31, 61 L. Ed. 326, 37 S. C. R. 180. See, Cushman, op cit, 3 Minne- 
sota Law Review 406 ff. 

147 For discussion of power of states to pass laws preventing various 
uses of the United States mails, see Rogers, op. cit., Ch. 5. 



THE NATIONAL POLICE POWER 435 

obscene literature to use the mails for any purpose whatsoever. In 
the first case Congress prevents a misuse of postal facilities ; in the 
second case Congress withholds postal privileges as a sort of pen- 
alty for non-compliance with the congressional policy for the 
suppression of obscene literature. It makes conformity to cer- 
tain police requirements a condition precedent to the enjoyment 
of the use of the mails. 

While no statute of this type has yet been passed by Congress, 
the desirability of enacting such laws has more than once been 
urged in recent years by those whose views as to the constitu- 
tional propriety of such legislation should be accorded respectful 
consideration. Perhaps the most conspicuous of these proposals 
and the one most widely discussed was the one made by the Pujo 
Money Trust Committee in 1913. This congressional committee 
proposed as a means of regulating and controlling stock exchange 
speculation "that Congress prohibit the transmission by the mails 
or by telegraph or telephone from one state to another of orders 
to buy or sell quotations or other information concerning trans- 
actions on any stock exchange, unless such exchange shall be a 
body corporate of the state or territory in which it is located" 
and unless it comply with other specified conditions. 148 While 
the denial of mail privileges herein proposed was not absolute, 
it was nevertheless very substantial. The substance and effect of 
the proposed law was to penalize stock exchanges which refused 
to incorporate under the laws of any state by denying them mail 
privileges which were accorded to others. One writer has pro- 
posed a law similar in principle which would exclude from the 
mails papers of any corporation which refused to make full re- 
ports to the federal government respecting those aspects of its 
affairs in regard to which Congress desired full publicity. 149 
Dean J. P. Hall expresses the view that "as a last resort, Con- 
gress might deny the privileges of the mails to businesses, which, 
though operating wholly within a state, persisted in practices that 
Congress within a reasonable discretion saw fit to disapprove." 150 

148 Majority Report of the Committee to Investigate the Concentra- 
tion of Money and Credit (February 28, 1913). 

See Rogers, op. cit., 161 ff. 

14y Pamm, Powers of Regulation Vested in Congress, (1910) 24 Harv. 
L. Rev. 77. 

150 This view is based on the authority of the Lottery Cases which 
Dean Hall says rested upon the ground that "Congress could regulate 
interstate commerce for any purpose not forbidden by the constitution, 
not merely for purposes granted by the constitution," (1912) 20 Journal of 
Political Economy 473. 



436 MINNESOTA LAW REVIEW 

Mr. Bryan, in a newspaper debate with Senator Beveridge in 
1907, in which he appeared as the champion of states rights, ex- 
pressed the belief that Congress could properly deny all mail priv- 
ileges to monopolistic corporations or trusts. 151 In the autumn 
of 1918 two bills were introduced into Congress providing for a 
similar denial of postal privileges to those who employed chil- 
dren below a certain age. 152 

At the outset of any discussion of the constitutionality of 
this type of legislation, it would probably be admitted that Con- 
gress could deny mail privileges to persons as a penalty for crime. 
If Congress may constitutionally punish a criminal by depriving 
him of his citizenship, surely it could impose the lesser penalty 
of taking away a specific incident to that citizenship. It would 
make no difference what the offense was which was so punished, 
provided only that Congress had the constitutional authority to 
prohibit it and provided the denial of mail privileges was im- 
posed as other criminal penalties are imposed after conviction in 
a court having jurisdiction. The imposition of such a penalty in 
any other manner would, of course, be a denial of liberty and 
property without due process of law. It would clearly be a type 
of authority which could not be delegated to an administrative 
officer. 153 It may have been this rule which prompted the cau- 
tious language of the Supreme Court in sustaining the power 
conferred upon the postmaster general to refuse to deliver reg- 
istered mail matter to persons shown to be using the mails for 
fraudulent purposes. The law authorized the withholding of all 
such mail, and not merely such as pertained to the fraudulent 
transactions. After commenting on the practical impossibility 
of determining whether sealed mail matter is innocent or not, 
the court went on to say: 154 

"It is true it may occasionally happen that he [the post- 
master general] would detain a letter having no relation to the 

151 "Congress has power to control interstate commerce, and the decis- 
ion of the Supreme Court in the Lottery Case leaves little doubt that that 
power can be so exercised as to withdraw the interstate railroads and tele- 
graph lines and the mails from the corporations which control enough of 
the product of any article to give them an actual monopoly." The Reader, 
Vol. 9, p. 356. 

152 Sen. bills 4732, 4760, June 27, 1918, introduced by Mr. Kenyon. 
Cong. Rec, Vol. 56, 8341. 

153 Interstate Commerce Commission v. Brimson, (1894) 154 U. S. 
447, 485, 38 L. Ed. 1047, 14 S. C. R. 1125, 155 U. S. 3, 39 L. Ed. 49; 
Wong Wing v. United States, (1896) 163 U. S. 228, 234, 41 L. Ed. 140, 16 
S. C. R. 977; Whitcomb's Case, (1876) 120 Mass. 118, 21 Am. Rep. 502. 

154 Public Clearing House v. Coyne, (1903) 194 U. S. 497, 48 L. Ed. 
1092, 24 S. C. R. 789. 



THE NATIONAL POLICE POWER 437 

prohibited business ; but where a person is engaged in an enter- 
prise of this kind, receiving dozens and perhaps hundreds of 
letters every day containing remittances or correspondence con- 
nected with the prohibited business, it is not too much to as- 
sume that, prima facie, at least, all such letters are identified 
with such business. . . . Whether, in case a private registered 
letter was thus seized and detained, and damage was thereby 
occasioned to the addressee, an action would lie against the post- 
master general, is not involved in this case." 

The Court seemed to view with disfavor a construction of 
the law which would place in the hands of an administrative 
officer the power to deny to a person the right to receive innocent 
mail matter because he was found to be using the mails for for- 
bidden purposes. Such a power would savor of the imposition of 
a penalty for crime by the postmaster general, whereas crime 
can legally be punished only by a court of law. 155 It is the belief 
of the writer that the power exercised by the postmaster gen- 
eral to exclude permanently from second class mail privileges 
publications in the issues of which he has found non-mailable 
matter within the meaning of the Espionage Act, is open to 
various serious questions on the grounds just mentioned. It is 
one thing to allow an administrative officer the power to exclude 
non-mailable publications ; it is a very different thing to allow 
him to keep on excluding the subsequent issues of such publi- 
cations when in actual fact they might prove to be innocent in 
character. 156 Such procedure raises, to say the least, a very 
close question of due process of law. 

With such legislative proposals as those mentioned at the 
beginning of this section, however, — laws in which the denial of 
mail privileges is imposed as a penalty for acts of omission or 
commission which Congress has no power to punish directly, — the 

155 A like construction would presumably apply to the clause of the 
Espionage Act conferring similar authority upon the postmaster general. 

156 The grounds upon which the postmaster general bases the propriety 
of his action in these cases are set forth by him as follows : "To be a 
'newspaper or other periodical publication' within the meaning of the law 
governing second-class matter a publication must among other require- 
ments, be composed in its entirety of mailable matter. A publication 
containing matter which is nonmailable is not a 'newspaper or other 
periodical publication' within the meaning of the law and therefore is not 
entitled to the second-class mail privilege. In administering the law 
governing second-class matter it has been found necessary to revoke the 
second-class mail privilege of some publications for the reason that their 
contents consisted more or less of matter which was nonmailable and 
which, therefore, removed them from the class of publications entitled 
under the law to that privilege." Report of the Postmaster General, 1917, 
p. 65. 



438 MINNESOTA LAW REVIEW 

question of constitutionality assumes a very different form. This 
is not so much the imposing of a penalty in the technical sense 
of the word as the setting up of an antecedent or even a con- 
tinuing condition as the price of the enjoyment of mail privi- 
leges. The price of the privilege of using the mails is the aban- 
donment of child labor, or the cessation of monopolistic 
practices, or the filing of reports regarding corporate business 
and activities. The test in the light of which the validity of these 
acts must be judged is, in the last analysis, the relevancy of the 
conditions thus imposed to the postal power and the interests and 
functions for the promotion of which that power may be used. 
This seems to be the test applied by the Supreme Court to 
the provision of the Newspaper Publicity Act of 1912 which 
denies the privileges of the mails to publications which fail to 
comply with the requirements of the law in respect to printing 
semi-annually certain facts respecting their ownership and con- 
trol. 157 In passing upon the validity of this act, the Supreme 
Court, after holding that the denial of mail privileges mentioned 
should be construed to mean second class privileges only, pointed 
out that the condition imposed on the publishers was intimately 
connected with the purposes for which second class mail privi- 
leges had been created and that it was within the scope of the 
postal power to extend those privileges "upon condition of com- 
pliance with regulations deemed by that body incidental and 
necessary to the complete fruition of the public policy lying at 
the foundation of the privileges accorded." 158 The implication 
is clear that if the condition thus imposed had not been thus 
related to the public policy which Congress under the postal 
power could properly promote, it would have been void. 159 

If the conditions thus imposed as the price of the enjoyment 
of mail privileges are not thus relevant to the purposes of the 
postal power, as would seem to be the case with the proposed 
child labor law, the statutes creating them could be attacked 

157 Act of August 24, 1912, 37 Stat, at L. 553. 

"s Lewis Publishing Co. v. Morgan, (1913) 229 U. S. 288, 57 L. Ed. 
1190, 33 S. C. R. 867. 

159 The brief for the government had alleged that Congress possessed 
the most arbitrary power to classify mail privileges. See supra, note 197. 
The court concludes its opinion in this case with the following statement : 
"Finally, because there has developed no necessity of passing on that 
question, we do not wish even by the remotest implication to be regarded 
as assenting to the broad contentions concerning the existence of arbi- 
trary power through the classification of the mails, or by way of con- 
dition, embodied in the proposition of the government which we have 
previously stated." 






THE NATIONAL POLICE POWER 439 

upon two grounds. It could be urged, in the first place, that 
such laws were not in reality exercises of the postal power at 
all because the use of the mails has nothing whatever to do with 
the evil of the child labor which it is the object of the legislation 
to remedy. 160 In the second place, such a statute ' would fail to 
meet the tests of due process of law. What has already been 
said upon the subject of due process of law in its application to 
arbitrary classifications of mail matter 161 would apply with equal 
force to the classifications established by the acts now being con- 
sidered. When persons are classified in respect to their privileges 
in the mails upon the basis of their employment or non-employ- 
ment of children, they may properly urge that that classification 
is arbitrary and a denial of due process of law. It may further 
be suggested that the Supreme Court has declared in a well 
known case 162 that a person is deprived of due process of law 
by being obliged to sacrifice a constitutional right as the price 
of securing a privilege which the government might withhold 
entirely in its discretion. This principle would seem to be ap- 
plicable by way of analogy to the case of one who, as a condition 
of enjoying the privileges of the mails which Congress need not 
extend to any one, is required to do something which Congress 
could not make him do, or cease doing something which Con- 
gress could not forbid. 163 It is the belief of the writer that the 
Supreme Court would not hesitate to declare such legislation 
unconstitutional on either or both of the grounds which have 
been mentioned. 

Conclusion 
It seems clear from the foregoing analysis that the postal power 
is one which may be wielded very effectively by Congress for 
the police purposes. That power extends to the adequate pro- 
tection of the postal service from injury; it extends to the pro- 
tection of the public from the various dangerous or harmful 

160 It was urged by the proponents of the Keating-Owen Act that there 
was a substantial relationship between child labor and interstate com- 
merce for the reason that child labor "feeds" on interstate commerce and 
is stimulated thereby. For discussion of this point, see Cushman, op. 
cit, 3 Minnesota Law Review 471 ff. The connection between child 
labor and interstate commerce and the postal system is certainly much 
less substantial than between child labor and interstate commerce. 

161 Supra, p. 427. 

162 Western Union Telegraph Co. v. Kansas. (1910) 216 U. S. 1. 54 L. 
Ed. 355, 30 S. C. R. 355. 

163 For development of this point, see Green, The Child Labor Law 
and the Constitution, Illinois Law Bulletin, April, 1917, p. 17; also Beck, 
Nullification bv Indirection, (1910) 23 Harv. L Rev. 441. 



440 MINNESOTA LAW REVIEW 

uses to which mail privileges may be put ; it extends to the pro- 
motion of positive public policies related to the broad purposes for 
which the postal system exists ; it extends to the withholding of 
postal privileges as a means of inducing persons to conform to 
reasonable requirements and regulations incidental to the privi- 
leges of the mails. But as soon as Congress begins to use its 
postal power as a lever or a club to compel people to do things 
or refrain from doing things which have no real or intimate 
relation to the postal system or any of the larger purposes 
Avhich may properly be promoted by it, the line of constitu- 
tionality has been crossed and Congress has exceeded its powers. 
In exercising a police power under the postal clause, as under 
the powers to tax and to regulate commerce, the ultimate test 
of constitutionality must be, not whether the police regulation 
established is necessary or desirable for the protection of the 
national health, safety, or morals, but whether the evil which 
Congress is combatting has any real and practical connection with 
the particular delegated power which Congress is employing. 
Any other construction of the authority of Congress to exercise 
a police power would destroy the whole force of the doctrine of 
delegated national powers and allow Congress by a process of the 
most obvious indirection to deal with problems of purely local 
welfare. 



LIBRARY OF CONGRESS 




012 052 393 4 



